在线订立格式条款的效力分析

在线订立格式条款是网络服务提供者预先拟定并在网络空间广泛适用的合同条款,用户通过点击确认或浏览行为等表达接受,该格式条款则发生法律效力。在线订立格式条款具有效率价值,其效率远超过网络服务提供者与用户以自由协商的方式订立合同。然而,虽然网络服务提供者按照现行法律要求履行提示说明义务,但仍然可能较为隐蔽地存在合意瑕疵与内容违法等问题。网络空间具有特殊性,利用社交信息流转、依据用户主观认识、通过显失公平原则等既有措施无法实现较好的规范效果,应当建立包括对网络服务提供者、用户与监管部门三方内容的分层完善制度,通过体系性安排,使用户在网络空间的各项权益获得更为妥当的保护。

Online format clauses refer to contract clauses that are prepared in advance by an Internet Service Provider(ISP)and widely applied in cyberspace.They often appear in a specific form of electronic contract such as click-contract and browse-contract.Once the users express their acceptance through clicking confirmation or browsing behavior,the format clauses become legally binding.Online format clauses have efficiency value,and the efficiency gains they bring far exceed those brought by the free negotiation of contracts between ISPs and users.However,as format clauses are pre-prepared terms,they have problems of consensual defects,the illegality of content and so on,even though ISPs fulfill their obligation to provide explanations in accordance with current laws.The existing laws can satisfactorily deal with the defects in the performance of the duty to remind and explain the format clauses in traditional paper contracts,but cannot properly solve the validity dilemma of online format clauses.In paper contracts,the provider of format clauses is required by law to highlight important format clauses related to rights and obligations by using boldface,underlining,italics,etc.In cyberspace,however,users are in a more disadvantaged contracting position,lacking sensitivity to various traps in web pages and being completely unfamiliar with network technologies such as backgroundrunning programs.In addition,users’urgency and bounded rationality to use network products or services may lead them to accept the format clauses provided by ISPs without knowledge or understanding.By taking advantage of their dominant position in the Internet environment and the objective situation of users’unfamiliarity with network technologies,professional vocabulary,etc.,ISPs often fail to fulfill their obligations of reminding and explaining as stipulated by the law,and even introduce unfair format clauses directly into click contracts and browse contracts,thereby obstructing the achievement of the legislative purpose of adjusting the unequal status of the parties as intended by the system of validity of format clauses.The emerging validity supplement measures can promote users’understanding of format clauses to varying degrees and guarantee their privacy and property interests.But there are still some problems with these measures,such as inducing moral risks and leading to ambiguous judgments.Therefore,a hierarchical system should be constructed for the validity of format clauses to strengthen the performance of various obligations by ISPs(such as clarifying effective prompt obligations,providing opportunities for the review of the clauses,and improving user acceptance mechanism),encourage the parties to follow the principle of consideration,and promote the formulation of lists of valid clauses/invalid clauses by the regulatory authorities,etc.Such institutional arrangements,which involve ISPs,users and regulatory authorities,will be able to maximize the genuine consent of the parties in the contract activities in cyberspace and ensure that all parties are bound by fair and reasonable format clauses.