文章基本信息

标题：Characteristics of Party autonomy in a Transnational Electronic Consumer Contract
本地全文：下载
作者：Moh. Ali ; Agus Yudha Hernoko
期刊名称：Yuridika
印刷版ISSN：0215-840X
电子版ISSN：2528-3103
出版年度：2020
卷号：35
期号：1
页码：55-74
DOI：10.20473/ydk.v35i1.15105
出版社：Airlangga University Press
摘要：International contracts involving legal subjects between countries will affect the law chosen by the parties. Electronic contracts are different than conventional contracts in general. Prominent characteristics includevirtual, paperless and borderless. Determination of legal choices cannot be made with a link-point approach that is generally applicable to conventional transactions. The typical e-commerce characteristics should be special treatment for special contracts. The virtual nature that knows no national borders is difficult to determine in which country the legal event takes place. Paperless nature often overrides accuracy in transactions, especially with regard to legal choice clauses and forum choices.In addition, another character is that electronic transactions are made in standard form and are arranged for the purpose of take or leave it. Generally, business actors have determined the choice of law and the choice of the forum. Electronic contracts place consumers in a weak bargaining position (the weaker party). There are active limitations in determining the legal choice clause, causing consumers not to have an unequal bargaining power, giving rise to a fundamental paradigm shift in the principle of freedom of contract from "party autonomy" to "one-sided autonomy". On this basis, the need for state intervention to provide legal protection in the form of mandatory regulations as an exception to the contractual principle that is absolute becomes relative, namely that the applicable law is not mutatis mutandis law that is chosen by the parties but the law where habitual residence is.
其他摘要：International contracts involving legal subjects between countries will affect the law chosen by the parties. Electronic contracts are different than conventional contracts in general. Prominent characteristics includevirtual, paperless and borderless. Determination of legal choices cannot be made with a link-point approach that is generally applicable to conventional transactions. The typical e-commerce characteristics should be special treatment for special contracts. The virtual nature that knows no national borders is difficult to determine in which country the legal event takes place. Paperless nature often overrides accuracy in transactions, especially with regard to legal choice clauses and forum choices.In addition, another character is that electronic transactions are made in standard form and are arranged for the purpose of take or leave it. Generally, business actors have determined the choice of law and the choice of the forum. Electronic contracts place consumers in a weak bargaining position (the weaker party). There are active limitations in determining the legal choice clause, causing consumers not to have an unequal bargaining power, giving rise to a fundamental paradigm shift in the principle of freedom of contract from "party autonomy" to "one-sided autonomy". On this basis, the need for state intervention to provide legal protection in the form of mandatory regulations as an exception to the contractual principle that is absolute becomes relative, namely that the applicable law is not mutatis mutandis law that is chosen by the parties but the law where habitual residence is.
关键词：Consumer Protection; Choice of Law; Habitual Residence; Characteristic
其他关键词：Consumer Protection;Choice of Law;Habitual Residence;Characteristic Consumer Contract.