对移动公司默示放弃规定的法律思考

Legal Consideration on China Mobile's Regulations on Client's Acquiescence of Disclamation

在日常生活中,人们被移动公司霸王条款所困扰,特别是默示放弃规定,移动公司以此减免自身责任。移动通信服务合同属于无名合同,其话费清单短信协议作为格式合同,对于移动运营商利大于弊,移动用户过多承担法律责任,双方权利义务严重不对等,移动服务合同违背契约自由的精神,与法治化国家建设背道而驰。我国移动公司由邮政部门分离出来,具有浓厚的行政色彩,其管理层领导是省部级别,使主管机关监查往往会受到干预。为达到标本兼治的目标,应当通过行政规制,移动通信领域放宽准入资格,取消特许机制,适当引入竞争模式,让更多有资金,有技术的企业参与其中,避免移动运营商进行垄断经营。

In the daily life, people are often annoyed with imparity clauses of China Mobile, especially regulation on acquiescence of disclamation, by which China Mobile attempts to avoid its responsibility. The contracts of China Mobile Communication Corporation are mainly nameless contracts, among which the agreement of short messages and conversation records are format contracts, thus it is highly advantageous to China Mobile, while the clients take more legal responsibilities. The rights and obligations between two parties are very unequal. The ser-vice contracts of Mobile Co. violate the spirit of free contract, and run counter to construction of legal nation. China Mobile has strong administrative characters, for it is derived from the National Postal Administration. Its senior leadership belongs to ministerial or provincial-level officers, so the supervision on them is often inter-vened. .In order to solve the problem, on the one hand, in the process of administration of national enterprise, the third party experts and guilds can be established and supervise and inspect the contracts; on the other side, mo-bile telecommunication industry should broaden the admittance standard, cancellthe monopoly system, and intro-duce competitive modes to let more capitals and enterprises participate and avoid the monopoly.