Regulation Of Unfair Clauses In Telecommunication Service Contracts

The issue of the unfair clauses in telecommunication service contracts,which are in the form of standard clauses,is essentially disequilibrium in payments.The issue generates from structural inequality between two parties.In order to pursue maximum profit and minimum risk,in most cases,telecom service providers seize illegitimate benefits by making unfair clauses,which damages users’ and social interests.The dissertation aims to maintain interest equilibrium in contracts and protect vulnerable groups,including small and micro enterprises and consumers by regulating unfair clauses in telecommunication service contracts.For regulation of unfair clauses,there are mainly two paths--clauses included into the contracts and effectiveness control.With regard to effectiveness control,review rules of effectiveness for general contract clauses and ones for special standard clauses are different.How to perform well in the two regulation paths is worth discussing.The first chapter explores current situation of unfair clauses in regulation.For one thing,typical types of unfair clauses are summarized from the reports and announcements issued by the Consumers’ Association and the Ministry of Industry and Information Technology,network access service agreements of the three major telecom service providers,and judicial cases in the past five years.For another,specifications of unfair clauses in telecommunication service contracts are sort out and evaluated.The specifications mainly come from the Contract Law and its judicial interpretation,Law of the People’s Republic of China on the Protection of Consumers’ Rights and Interests and the Telecommunication Regulations.Among these specifications,rules of different laws on obligations of reminding and explaining are inconsistent;judgment standard and statutory examples in review rules of standard clauses are over recapitulative;it is also undefined if the clauses should be viewed when the clauses and indefinite law provision in Telecommunication Regulations are the same,etc.The above problems trouble the judgment and effectiveness control of unfair clauses in telecommunication service contracts.The second chapter analyzes judgment standard for unfair clauses in telecommunication service contracts.Clauses are included into contracts only under the circumstances that the telecommunication service providers are able to perform their obligation of reminding and explaining;there is no need to review the fairness of the clauses,otherwise.To solve the problem that judgment standard and statutory examples in review rules of standard clauses are over recapitulative,the dissertation compares reference factors and measures the deviation between the clauses and laws,so that the operation of judgment standard can be strengthened.Unconscionability in the review of general contract clauses is applicable to the core presentation clauses,who run a good market mechanism and lack laws for reference.The third chapter discusses the effectiveness control of unfair clauses.The third chapter discusses the effectiveness control of unfair clauses.The “grey list” drawn up by Consumers’ Association has an indirect influence in the effectiveness on unfair clauses,which provides legislative resources for substantial law by further concluding the unfair clauses in telecommunication service contracts.If subject to the unconscionability,the effectiveness of the core presentation clauses in telecommunication service contracts is revocable.Non-core presentation clauses are subject to the effectiveness control of standard clauses;if unfair,the effectiveness of the clauses is invalid and “effectiveness reduction” cannot be applied.The effectiveness of other parts of the contracts is determined by the position of the invalid clauses in the contracts;if the non-core presentation clauses are invalid,the other parts of the contract are still valid.If there are gaps in contracts,with reference to the judgment standard of the unfair clauses in telecommunication service contracts,the judge should fill gaps based on relevant laws and legal spirit;if there is no relevant laws,the judge should make supplementary explanations combined reference factors.