(a) the question of written form
A written contract has the characteristics of clear confirmation and well-documented, which is conducive to the prevention and settlement of disputes. Whether a contract is in written form or not, according to Article 10 of China's Contract Law, the parties to the contract can decide according to their own wishes, either in written form or in other forms.
Article 1 1 of China's Contract Law stipulates that "written form refers to forms that can tangibly express the content, such as contracts, letters and data messages (including telegrams, telex, faxes, electronic data exchange and e-mails)". This article solves the problem of "written form" of data messages. In e-commerce activities, the parties to a contract in China can conclude a "written contract" required by law in the form of data messages.
(2) Establishment of the contract
1. Time and place of establishment of electronic contract.
(1) Effective time of acceptance in the form of data message.
(2) About the sending and receiving places of data messages.
2. Withdrawal and revocation of the expression of will.
The withdrawal of the expression of will refers to the act that the ideologist sends a notice to the other party before the expression of will reaches the other party, denying the validity of the previous expression of will. In contract law, the withdrawal of expression of will includes the withdrawal of offer and the withdrawal of acceptance.
In the electronic network environment, it can be realized in some cases. For example, the offeror sends a revocable offer by e-mail, and the offeree does not immediately reply to make a promise after receiving the offer, which reaches the other party. However, if the offeree uses the automatic reply system to automatically reply to the qualified offer, the offeror may not be able to cancel the offer. The author thinks that more flexible regulations should be made according to different electronic transmission modes in the legislation of e-commerce to meet the needs of the development of e-commerce.
(c) Digital signature and authentication issues
1. In the paperless trading environment of e-commerce, autographing in the traditional sense is obviously impossible. However, in view of the multiple functions of autograph in traditional transaction methods: determining the identity of the parties; Show that both parties agree to the contents of the contract and are willing to be bound by it; Prove that the contract documents are true and complete. It has the function of proving the authenticity and integrity of the contract, which is of special significance to e-commerce which has been troubled by network security problems. Therefore, the signature requirement should not be abolished in e-commerce environment, on the contrary, it should be strengthened.
2. Authentication is an important system related to digital signature. In online transactions, buyers and sellers need to identify each other's credibility when conducting each transaction, so a third-party organization or individual should authenticate the identities of both parties to ensure the security of online transactions.
(d) Format clauses in electronic contracts
The emergence and development of standard clauses is one of the important signs of the development of contract law in the 20th century. Its appearance not only changed the traditional way of contracting, but also posed a great challenge to the principle of freedom of contract. Format clauses are also widely used in e-commerce. Some large e-commerce websites have drawn up extremely detailed format terms.
(5) The validity of electronic evidence.
Article 63 of China's Civil Procedure Law stipulates seven kinds of legal evidence: (1) documentary evidence; (2) Physical evidence; (3) Audio-visual materials; (4) Testimony of witnesses; (5) statements of the parties; (6) Evaluation conclusion; (7) Inspection records. What kind of electronic evidence should be classified is a problem worth discussing.