Legal Regulation of Unfair Application User Agreements in China  

作　　者：LAN Zihang LUO Yichen YAN Yanru 

机构地区：[1]Macao University of Science and Technology,Macao,China [2]Nanjing University of Information Science and Technology,Nanjing,China

出　　处：《US-China Law Review》2023年第5期215-226,共12页美中法律评论（英文版）

摘　　要：With the increase in the content and specialization of user agreements,the vast majority of users seldom,if ever,read the user agreements of mobile applications.In the face of absolutely strong application providers,users are forced to accept user agreements out of necessity,which leaves an opportunity for application providers to stipulate unfair terms,and in the long run,users will fall into rational indifference to the defense of unfair user agreements.In order to solve the above problems,this paper proposes that for online platforms with a large number of users and a dominant position in the market,they should convert most of the contents in the application agreement into the legal provisions of the model contract,and display only the terms that the users are able to choose and those that modify the model contract when entering the application.Among the invalid blacklists in the model contract,the law should add new clauses that explicitly prohibit the set-off of uncertain liquidated damages in format contracts,unnecessary authorization of personal information,format jurisdiction,and unlimited copyright licenses to adequately protect the rights and interests of vulnerable users.In addition,the law should grant users the right of withdrawal and a certain degree of refusal in case of substantial obstruction,in order to balance the position and interests of application providers and users.Finally,the law should establish a public interest litigation system and a pre-censorship system to build a final line of defense for a comprehensive review of the fairness of user agreements.

关 键 词：format terms user agreement model contract invalid list 

分 类 号：TN9[电子电信—信息与通信工程]