论软件运营商“惩罚权”在合同法上的性质及限制.pdf

最后，希望本文对软件运营商“惩罚权”在合同法上的性质及限制的研究，能对软 件行业的发展以及软件用户权益的保护做一点微不足道的贡献。 关键词：用户协议；软件运营商；用户；许可条款；服务条款；同意条款；管理规 则；惩罚权 3 万方数据 Abstract The “digital death penalty” incident in October 5, 2016 showed us the strong influence of the software operators to the users. This raised a wide range of questions from users and the media. The influence is directly derived from the “punishment power” in the user agreement. The subject of this paper is the nature of this “punishment power” and its limitations in the contract law. For these purpose, this paper chooses 12 representative user agreements as the research samples. And through the study of these sample agreements, I found that user agreement contains terms of different nature. There are three of them relating to the “punishment power” of the software operators: terms of license, terms of service and terms of agreement to management rules. First, terms of license in user agreement are not actually the contract of license in the sense of intellectual property law, and they are merely a reminder of the rights granted to users by the software protection regulations. And second, the terms of services are actually the contact of service in the sense of the contract law. The supporters of virtual property theory think that these terms of service both have the nature of the contract of sale and custody. I don’t agree with them. Finally, the terms of agreement to management rules are essentially a commission contract between the users and the software operators, while management rules agreed by users are operator-led autonomy rules of the virtual communi