| Many problems of modern society began in the modern economic and technology development by the new factors, but the opposite also led to the civil law system and the changes of ideas, and the evolution of the modern civil law has also begun to pay more attention to the substantial justice and the pursuit of social justice. In this paper, on the same network service standard contract, the paper analyses the characteristics and applicable situation, reveal our country’s current law for specification problems of exemption clause of network service standard contract. From the perspective of theory and practice, to use the method of case analysis and comparative study of exemption clause of network service standard contract into rules, explanation and efficacy determination problems such as in-depth analysis. At the same time, combined with the analysis to make clear the market economy idea of freedom and the freedom of contract, responsibility conceited, equal protection of the legal concept is not obsolete, then tilt protection is not inconsistent with interests balance point, when necessary to avoid excessive protection, and carries on the reasonable deviation timely, we should adhere to the concept of has always been. On such a basis, and combined with the latest research of American scholars, this paper first on the rules of value guide to seek a reasonable path, through the value of the model to clarify the value of different trade-offs, stretch from the methodology Angle, import operators and consumers interests balance, the discussion of ascension standard exemption clause question in current network services standard contract research level. No longer just to stay in the rule, but more to join such as people’s behavior, intrinsic value, empirical research, and many other new factors.As a whole, for this article, the full text around the core lies in the effectiveness judgment of network service standard contract, because it begins with the opening of the book into the rules, or to explain the rules to replenish the specific content, effective decision problem is always in the most closely linked parts. First, this paper analyses the value of the legal norms, the scholars in the United States to enter into a contract for consumer orientation behavior research as the guide, mainly explains the consumer behavior and rational reflection, based on this kind of behavior on the value theory, focus on the value of fairness and efficiency factors. On the basis of a clear value balance, established at the head of the global methodology basis; Secondly, in the concrete is discussed under the guidance of methodology of network service standard contract exemption clause into rules, focusing on the existing law defect analysis, at the same time, combined with the general requirements of order into the rules and characteristics of network service contract, clearly the most suitable for the actual network service contract format disclaimer the proposed way and instructions for the duty. On the basis of the foregoing, further explore the interpretation rules of the network service standard contract, combined with the concept of balancing of interests, to explain strictly, limit solution, interpretation of the unified interpretation analysis, etc. And clearly explain the rules of network service standard contract exemption clause applies; Finally returned to the effect on the decision problem, this article systematically combed the format of the effectiveness of the disclaimer for determining general rules, including the format of the disclaimer inequitable, in violation of mandatory rules and basic principles of civil law is invalid. The content of this part is the most important is combined with practice, the example is analyzed to Tencent QQ, Taobao, Jingdong, Jumei and other giant network services represented the main internet service provider to provide the standard exemption clause. The same combination of decision analysis and the existing legal problems, clarify the current problems we are 3facing, in an attempt to find a balance between service providers and consumers about distribution of rights and obligations.Specifically, in this paper, the structure of the main content is as follows:The first chapter mainly focuses on standard exemption clause to analyze the value of the legal norms. Scholars from the United States to enter into a contract based on the consumer orientation behavior reflection, which leads to format the value analysis of the legal standard exemption clause. Value analysis mainly involves the theory of value foundation and concrete operational mechanism to choose the content of the two aspects, on the basis of the derivation of fair and efficiency are two value factors, the direction of the integration rules apply methodology basis the balance among the interests of all parties.The second chapter mainly analyzes the way of standard exemption clause written into a rule, in the current legal analysis as the breakthrough point, reveal the provisions defects, in combing standard exemption clause of the general rules of order into the basis, of network service contract standard exemption clause in order into the rules were discussed and analyzed. Different with general contract, the network service contract of its own feature makes network service standard contract become a type in necessary to study. In view of the proposed method and the instructions for obligations set specific issues, this chapter will analyze one by one, in order to in the order of network service contract standard exemption clause into rules have deeper understanding, at the same time, this chapter will be to analyze and explain standard exemption clause below rules and a precondition of decision problem.The third chapter focuses on the principles of standard exemption clause explanation related rules, and then clear the network service contract standard exemption explanation specific rules shall apply. This chapter first explain standard exemption clause, basic academic viewpoint of standard exemption clause will need to explain or independence, and the other clauses in the contract for integrated interpretation of problems are discussed in this paper, think about the rules of interpretation of the need to follow the overall format must be comprehensive consideration disclaimer to explain in the position in the contract. To explain the specific standard exemption clause rules at the same time, including the objective interpretation rules, restrictions, explain, the rationalization of management under the strict interpretation of the rules, are discussed and analysis, and combined with the current legal disclaimer for format, the author analyses the specific interpretations of the last into the network service format disclaimer explanation of the specific problem.The fourth chapter analyzes the format disclaimer decided the rules as well as the deficiency of the current law, if the standard disclaimer effect to determine the general rule of concrete is discussed and analyzed. General rules including in equivalence of format terms, in violation of the provisions of forcibly inefficiencies and inefficiencies in violation of the basic principles of civil law. On this basis, the cases of interpretation of the analysis of the current major Internet service providers, the format of the disclaimer for terms, study the current issue. |
