Electronic Commerce Contract

Popularity has spawned.

With the flourishing development, the "locomotive" that drives the development of network economy is electronic commerce.

In 1990s, e-commerce began to rise in the United States, Europe and other developed countries and spread rapidly all over the world.

It became the main form of trade in twenty-first Century.

The development of the Internet has long gone beyond the scope of pure technology.

The legislation of e-commerce is undoubtedly the top priority.

Legislation is the precondition and condition for promoting the development of e-commerce.

This issue has been highly valued by international, regional organizations and governments in many countries. They believe that creating a legal environment suitable for the development of e-commerce is exactly what the government departments are doing in the electronic sector.

The leading role should be played in development.

In view of this, the United Nations International Trade Commission adopted a model law on electronic commerce in 1996.

Although the development of our legal system is still at a stage of primary development, our jurists, legal workers and some personnel in the industry have realized that the healthy development of e-commerce depends to a great extent on the construction of the legal system of electronic commerce. So at the three session of the nine national people's Congress in 2000, the representative of Shanghai from Zhang Zhongli submitted a motion called "the electronic commerce law" called "No. 1" to the conference.

The problem is put on the front desk.

In detail, it uses computer technology, network communication technology, automatic control technology, database technology and multimedia technology, etc., with the help of the Internet, it can effectively organize business and trade activities and realize the electronic process of the whole paction process.

Of course, defining e-commerce is not a difficult task, but it is very complicated to really establish a more perfect legal system for e-commerce.

There are many legal problems involved in e-commerce, but there are three main aspects, namely, the validity of electronic signature, the validity of electronic contract and the responsibility of network service providers.

Here we will focus on the legal issues of e-commerce contracts.

Contract summary

According to the second provision of the new contract law of China, "contract is an agreement between the citizens, legal persons and other organizations of equal subjects to establish, alter or terminate the relationship between claims and debts."

The contract reflects the legal act consistent with the intention of both parties or parties.

At this stage, the contract has become an important means to ensure the normal operation of the market economy.

For e-commerce contracts, because China has not yet made a clear legal definition of it, so referring to the views of scholars and international concepts, the definition of "electronic commerce contract" is the agreement between parties in order to achieve certain purpose, through the application of electronic data interchange (EDI) and e-mail, and other means to clarify the relationship between rights and obligations.

The traditional form of contract is mainly oral and written in two ways.

Oral form refers to an agreement reached directly by the parties through verbal or telephone calls.

The written form means that the parties express the content of the agreement by means of direct expression.

Compared with this, the meaning and role of the contract of electronic commerce has not changed, but its carrier and operation process have undergone great changes, mainly with the following characteristics:

The contents of the contract are all recorded in the intermediary of the computer or disk, which can be pferred and stored by the intelligent paction system, that is, the electronic agent. Its credit must rely on the authentication of the password or the authentication of the certification body.

In electronic commerce, pactions with small amount and simple relationship do not have specific form of contract. They are represented by ordering and paying directly through the Internet, such as buying software directly through the Internet.

However, there is no invoice in this form, and the electronic invoice is only a theoretical assumption.

On the Internet, there is no way to identify signatures and seals like written contracts.

As a new form of trade, electronic commerce conflicts with the existing contract law. It is very easy to understand.

But for the laws and regulations, there is a way to modify and develop the existing contract law in order to adapt to the new trade form.

In terms of legislation, China's contract law first touched on this issue in 1999, but rough lines and many unsatisfactory practices.

Therefore, further research is needed to make reasonable adjustments to the existing legislation.

First of all, we need to clarify the above issues concerning electronic agents and electronic signatures.

In traditional pactions, the parties will negotiate the main clauses and reach agreement.

But after the emergence of e-commerce, many businesses have adopted an artificial intelligence paction system when signing electronic contracts, which can send, receive or process orders automatically.

Because these systems have the function of automatic booking and checking, they can save the traditional negotiation process of manual negotiation.

This system is known as electronic agent by people.

In some countries in Europe and America, electronic agents are defined as "computer programs, electronic or other automated means that can be used to independently issue, respond to electronic records, and perform part or all of the contracts without requiring human censorship or operation."

Although electronic agents are not human beings, they are smart in some sense.

For example, an electronic agent can automatically find relevant information or products according to the conditions of purchase or sale set by the agent, and can compare the price and performance, and conclude pactions on the best conditions.

Since the electronic agent has such an independent function, does it have the legal qualification?

Of course not, although the electronic agent can carry out the person's intention, it is just an intelligent paction tool, and the will and desire of the parties have been integrated into the process of compiling the program.

Therefore, the nature of this special application tool is ultimately determined by the body of the tool, that is, the legal status of human beings.

In fact, the reason why an electronic agent is called "agent" is actually the right entrusted by the parties to execute the party's intention to realize the interests of the parties, and its authority is within the designated scope of the parties.

Because the thinking ability of the electronic agent is presupposed and limited, it is the materialized artificial intelligence.

In the process of concluding a specific contract, the parties do not make amendments to the intention to give the electronic agent, which means that the parties still agree to make a treaty according to the prescribed conditions of offer.

That is to say, only when the offeree agrees with the conditions put forward by the offeror, will the computer program continue to execute, which is like the two parties in the process of contracting the contract, when the two sides mean the same thing, the contract will be established.

Therefore, the contract signed by the electronic agent is the intention of the offeror, so the contract signed by the electronic agent should be effective.

The United States has made detailed regulations on electronic agents in the Uniform Electronic Transactions Act and the unified computer information paction act and the information paction act, forming a complete system.

Our country can draw lessons from it, and solve the problems such as the offer and commitment of the electronic agent signing the contract, the format of the contract, the validity of the contract and the undertaking of the legal liability.

It has the following characteristics: first, because of scientific and technological reasons, people can not pass autographs through electronic data. The electronic signature shows only a set of code, which reflects the endorsement of the signatory through this code.

Therefore, electronic signature is not intuitive; secondly, the signature verification of a general written contract can be authenticated by an expert group or a specific certification body with subjective factors.

The electronic signature is verified by data comparison by the authentication computer instruction system, which controls the electronic signature. Compared with the former, the electronic signature is more strict and more effective. Thirdly, the Internet itself contains many unsafe factors. The proliferation of hackers will inevitably bring crisis to the electronic signature authentication computer system.

Embezzlement, change of electronic signature to carry on the paction, evade the legal sanction, will continue to appear, bring the huge loss to the parties.

New things will always bring advantages and disadvantages.

Although electronic signature has its very fragile side, we can not evade these difficulties.

Many countries have developed relevant laws on electronic signatures, such as Singapore, Japan, Australia and so on.

The standard of international accredited electronic signature is the "functional equivalence" principle. Its core is to analyze the traditional signature requirements, and it is necessary to make electronic data get the same recognition as traditional documents.

Because our government has a relatively sufficient understanding of the development opportunities brought by the wave of the third industry, China is now tightening up relevant policies.

According to the legal provisions of electronic signature, in Clause twenty-eighth (two) of the draft contract law, "signature" means "the signature of the parties and their authorized representatives, or the reasonable method of identifying information pmission in the case of using a machine, such as a computer."

However, the provision is not accepted in the official version of the contract law.

It can be seen that in our current legislation, the concept of signature has not yet covered the category of "electronic signature".

During the rapid development of e-commerce, it is a pity to exclude this category in such an important law, at least the attitude of the legal effect of electronic signature is uncertain.

Some experts suggest that domestic legislation can draw lessons from the relatively successful legislative experience of electronic signature in Singapore's e-commerce law, with emphasis on its definition, basic rules, signatories' responsibilities, evidence effectiveness, certification system, etc., and with the amendment of relevant laws and regulations, as far as possible to avoid conflicts with the new special law and common law, we should formulate relevant laws as far as possible, so as to promote the healthy, orderly and standardized development of e-commerce in China.