電信號碼轉(zhuǎn)讓糾紛案的法律分析
發(fā)布時(shí)間：2018-07-20 13:28
【摘要】：我國移動通信業(yè)起步于上世紀(jì)九十年代初，，隨著經(jīng)濟(jì)的發(fā)展和科技的進(jìn)步，手機(jī)從當(dāng)初的奢侈品發(fā)展到如今的普通大眾消費(fèi)品，據(jù)中國移動、中國聯(lián)通、中國電信的數(shù)據(jù)統(tǒng)計(jì)，截至2011年2月，我國的手機(jī)用戶已達(dá)到9.99億；隨著用戶數(shù)量的激增，移動通信業(yè)也成為我國經(jīng)濟(jì)發(fā)展的重要產(chǎn)業(yè)之一，僅中國移動一家公司，其2011年的營業(yè)收入就高達(dá)164億元人民幣。隨著電信業(yè)的迅猛發(fā)展，與移動通信合同有關(guān)的法律糾紛也日益增多。 對于移動通信合同，從立法方面來說，《電信法》草案一改再改，但至今仍未通過，現(xiàn)行的法律法規(guī)對于移動通信合同的規(guī)制主要由《消費(fèi)者權(quán)益保護(hù)法》、《電信管理?xiàng)l例》和《電信網(wǎng)碼號資源管理辦法》來完成，就后兩部法規(guī)來看，前者為行政法規(guī)，后者為部門規(guī)章，法律位階都比較低；不僅如此，就二者的內(nèi)容來看，大多為調(diào)整政府與運(yùn)營商之間的法律關(guān)系，對于普通用戶與運(yùn)營商之間的法律關(guān)系、法律適用、爭議解決程序卻言之寥寥。法律規(guī)定的不完善，各個(gè)法律法規(guī)之間效力參差不齊，調(diào)整范圍存在交叉重疊，這一系列原因?qū)е铝艘苿油ㄐ藕贤嬖诜烧{(diào)整上的盲區(qū)。 另一方面，從法律理論研究方面來看，由于可供借鑒的法律主要是行政法規(guī)和部門規(guī)章，因此理論成果主要集中在市場準(zhǔn)入、行政監(jiān)管等經(jīng)濟(jì)法領(lǐng)域，對于移動通信合同的性質(zhì)沒有統(tǒng)一的認(rèn)識，很少從合同法角度對移動電信服務(wù)合同的有關(guān)問題進(jìn)行探討。因此，法官或者仲裁員在處理此類糾紛時(shí)，往往無所適從。 電信號碼“轉(zhuǎn)移”從法理的角度觀察實(shí)則是電信號碼使用權(quán)的轉(zhuǎn)讓行為，對于此類“民間行為”如何進(jìn)行規(guī)制在現(xiàn)有的法律體系沒有作出修改和完善之前，還需要我國民法學(xué)界和理論界作出更多的努力。
[Abstract]:The mobile communication industry in China started in the early 1990s. With the development of economy and science and technology, mobile phones have developed from luxury goods to ordinary consumer goods. According to statistics from China Mobile, China Unicom, and China Telecom, As of February 2011, the number of mobile phone users in China has reached 999 million. With the rapid increase in the number of subscribers, the mobile communication industry has become one of the most important industries in China's economic development. Its revenue in 2011 was as high as 16.4 billion yuan. With the rapid development of telecommunication industry, legal disputes related to mobile communication contracts are increasing day by day. With regard to mobile communications contracts, as far as legislation is concerned, the draft of the Telecommunication Law has been revised and revised, but it has not yet been adopted. The current laws and regulations on mobile communications contracts are mainly completed by the Consumer Rights and interests Protection Law, the Telecommunication Administration regulations, and the measures for the Management of Telecommunication Network Code number Resources. From the latter two laws and regulations, the former is an administrative regulation. The latter is a department regulation, and the legal rank is relatively low; not only that, but in terms of the content of the two, most of them are to adjust the legal relationship between the government and the operators, and the law is applicable to the legal relationship between the ordinary users and the operators. The dispute settlement process has little to say. Due to the imperfection of laws and regulations, the effectiveness of various laws and regulations is not uniform, and the scope of adjustment is overlapping, this series of reasons lead to the blind zone of the legal adjustment of mobile communication contracts. On the other hand, from the point of view of the study of legal theory, since the laws that can be used for reference are mainly administrative regulations and departmental regulations, the theoretical achievements are mainly concentrated in the fields of economic law, such as market access, administrative supervision, etc. There is no uniform understanding of the nature of mobile telecommunication contract, and some problems related to mobile telecommunication service contract are seldom discussed from the angle of contract law. As a result, judges or arbitrators are often at a loss when dealing with such disputes. From the point of view of legal theory, the transfer of telecommunication number is actually the transfer of the right to use telecommunication number. How to regulate this kind of "folk behavior" before the existing legal system has been modified and improved. Still need our country civil law academic circle and theory circle to make more effort.
【學(xué)位授予單位】：湖南大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2013
【分類號】：D922.16;D923
本文編號：2133683
[Abstract]:The mobile communication industry in China started in the early 1990s. With the development of economy and science and technology, mobile phones have developed from luxury goods to ordinary consumer goods. According to statistics from China Mobile, China Unicom, and China Telecom, As of February 2011, the number of mobile phone users in China has reached 999 million. With the rapid increase in the number of subscribers, the mobile communication industry has become one of the most important industries in China's economic development. Its revenue in 2011 was as high as 16.4 billion yuan. With the rapid development of telecommunication industry, legal disputes related to mobile communication contracts are increasing day by day. With regard to mobile communications contracts, as far as legislation is concerned, the draft of the Telecommunication Law has been revised and revised, but it has not yet been adopted. The current laws and regulations on mobile communications contracts are mainly completed by the Consumer Rights and interests Protection Law, the Telecommunication Administration regulations, and the measures for the Management of Telecommunication Network Code number Resources. From the latter two laws and regulations, the former is an administrative regulation. The latter is a department regulation, and the legal rank is relatively low; not only that, but in terms of the content of the two, most of them are to adjust the legal relationship between the government and the operators, and the law is applicable to the legal relationship between the ordinary users and the operators. The dispute settlement process has little to say. Due to the imperfection of laws and regulations, the effectiveness of various laws and regulations is not uniform, and the scope of adjustment is overlapping, this series of reasons lead to the blind zone of the legal adjustment of mobile communication contracts. On the other hand, from the point of view of the study of legal theory, since the laws that can be used for reference are mainly administrative regulations and departmental regulations, the theoretical achievements are mainly concentrated in the fields of economic law, such as market access, administrative supervision, etc. There is no uniform understanding of the nature of mobile telecommunication contract, and some problems related to mobile telecommunication service contract are seldom discussed from the angle of contract law. As a result, judges or arbitrators are often at a loss when dealing with such disputes. From the point of view of legal theory, the transfer of telecommunication number is actually the transfer of the right to use telecommunication number. How to regulate this kind of "folk behavior" before the existing legal system has been modified and improved. Still need our country civil law academic circle and theory circle to make more effort.
【學(xué)位授予單位】：湖南大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2013
【分類號】：D922.16;D923
【參考文獻(xiàn)】
相關(guān)期刊論文 前1條
1 楊小強(qiáng);非典型合同論[J];中山大學(xué)學(xué)報(bào)(社會科學(xué)版);1997年S1期
本文編號：2133683
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