First, the legal relationship between the parties involved in e-commerce.

E-commerce is trading in virtual space. In the transaction process of e-commerce, there will be business contacts between buyers and sellers, between buyers and sellers and banks, and between buyers and sellers and banks and certification bodies, resulting in corresponding legal relations.

The legal relationship between the buyer and the seller is essentially the rights and obligations of both parties. The rights and obligations of buyers and sellers are equal. The obligation of the seller is the power of the buyer, and vice versa. Under the condition of e-commerce, the seller should undertake three obligations: submit the subject matter and documents according to the contract; Undertake the obligation to guarantee the rights and quality of the subject matter. The buyer should also undertake three obligations: the obligation to pay the price according to the provisions of e-commerce transactions; The obligation to accept the subject matter and the obligation to accept the subject matter at the time, place and manner agreed in the contract.

In e-commerce, banks have become virtual banks. The relationship between e-commerce transaction customers and virtual banks has become very close. Most transactions are completed through electronic fund transfer of virtual banks. Virtual bank plays the role of both sending bank and receiving bank. In practice, due to negligence or fraud, mistakes or delays in electronic fund transfer often occur. If it is a fault, the principle of fault imputation naturally applies. If it is caused by fraud, the security procedure of virtual bank in e-commerce is reasonable and reliable, and the nominal sender should be responsible for the payment instruction.

Certification body (CA) plays a supervisory and management role in the signing and performance of contracts between buyers and sellers, and both buyers and sellers are obliged to accept the supervision and management of certification centers. Certification bodies play an irreplaceable role in the whole process of e-commerce, including electronic payment. In the process of matching e-commerce transactions, certification bodies are third-party institutions that provide identity verification. It is not only responsible for the buyers and sellers who conduct e-commerce transactions, but also for the entire e-commerce transaction order.

Second, the legal issues of e-commerce transaction contracts

Contract, also known as contract. According to Article 2 of China's new contract law, "a contract is an agreement between citizens, legal persons and other organizations with equal subjects to establish, change and terminate the creditor-debtor relationship." A contract reflects a legal act agreed by two or more parties. At present, the contract has become an important means to ensure the normal operation of the market economy.

There are two traditional forms of contract, oral and written. Oral form refers to the agreement reached by the parties through direct expression such as oral or telephone. Written form means that the parties use indirect expression, that is, written form, to express the contents of the agreement. In e-commerce, the meaning and function of contract have not changed, but its form has changed greatly:

(1) Most of two or more parties to a contract do not meet. All buyers and sellers operate in the virtual market, and their credit depends on the identification of passwords or the certification of certification bodies.

(2) The oral form of traditional contracts is often manifested as shop transactions in trade, with invoices issued by merchants as the basis of contracts. In e-commerce, there is no specific contract form for transactions with small bid and simple relationship, which is manifested in ordering and paying directly through the network, such as purchasing software directly through the network. But there is no such form as invoice, and electronic invoice is only a theoretical idea at present.

(3) Digital signature replaces the traditional way of signing and stamping contracts.

(4) The place where a traditional contract takes effect is generally the place where the contract is established, while when a contract is concluded in the form of data messages, the recipient's main place of business is the place where the contract is established; If there is no main place of business, its habitual residence is the place where the contract is established.

The change in the form of e-commerce contract has brought a series of new legal problems to all countries in the world. As a new form of trade, it is very easy to understand that e-commerce conflicts with the existing contract law. But for laws and regulations, there is a problem of how to modify and develop the existing contract law to adapt to the new transaction form.

Third, the legal issues in electronic payment.

There is a certain difference between information security in electronic payment and information security in general. It has both the meaning of general information and the characteristics of financial industry and commercial information. The more and more important aspect lies in its further development, which inevitably involves the allocation of funds in the national economic construction and the important content of the lifeline of the national economy. Therefore, we must attach great importance to information security in electronic payment.

There are several payment methods for electronic payment, each of which has its own characteristics, and sometimes the two payment methods are incompatible. In this way, when the parties to an electronic transaction adopt different payment methods and these payment methods are incompatible with each other, it is impossible for both parties to complete payment through electronic payment, thus making it impossible to realize online transactions. Therefore, from the perspective of promoting e-commerce, it is necessary to unify various payment methods and combine them to form a more perfect payment method.

Council of Europe (EC) published a document entitled "European e-commerce ideas" in 1997, aiming at making initial efforts to formulate a unified e-commerce policy in Europe. The document pointed out that standardization is a major and severe problem. For example, there are more than 20 incompatible standards in the field of stored-value cards. The document also repeatedly emphasized that the solutions to the compatibility and interoperability problems are proposed from a global perspective. In order to solve this problem, the European Commission announced a specific research project on e-commerce standards and hosted a global information society standardization conference in Brussels. It can be seen that the unification of payment methods and standards has been included in the agenda of the European Union.

At present, China has just begun to formulate laws on electronic payment, and a large number of new legal issues need to be studied:

(1) The definition and characteristics of electronic payment. Electronic payment is a kind of payment behavior realized through the network. Similar to the traditional payment method, it will also cause the occurrence, change and elimination of legal relations involving the transfer of funds. Whether the legal definition of electronic payment put forward by the United States is suitable for the situation in China, what changes need to be made, and its behavioral characteristics should also be studied.

(2) Electronic payment right. The parties involved in electronic payment include payers, payees, banks and sometimes intermediaries. It is necessary to clarify the status of all parties in the payment activities, and then determine the acquisition and elimination of the rights of all parties. The issues involved in this aspect are quite complicated.

(3) Forgery, alteration, alteration and cancellation of electronic payment. In electronic payment activities, due to the rampant destruction of network hackers, the problem of forgery, alteration, tampering and erasure of payment data is becoming more and more prominent, which has a growing impact on society. The new Criminal Law of People's Republic of China (PRC) was implemented on June 1997+ 10/0/,in which Article 1 96 specifically targets at credit card crimes, including using forged credit cards, using invalid credit cards, fraudulently using other people's credit cards, and maliciously overdrawing. Smart cards are similar to credit cards, and the definition of crimes can still refer to the relevant provisions of credit cards, but the problems of electronic cash, electronic wallets and electronic checks are brand-new, and the identification and investigation of legal responsibilities need brand-new legal provisions.

(4) The development of criminal investigation technology. Due to the rapid development of computer technology, new electronic payment methods emerge one after another. Each method has its own technical characteristics, which will lead to new legal disputes. After these disputes appear, investigation and identification is a very complicated technical problem of criminal investigation. In the information age, traditional material evidence is gradually replaced by virtual evidence. At present, the course of material evidence technology in legal education still stays in the traditional investigation technology such as criminal photography, document inspection and trace material evidence collection, which is far from meeting the requirements of new technology development.

Fourth, the legal protection of e-commerce transaction security.

The legal protection of e-commerce transaction security involves two basic aspects. First, e-commerce transaction is the first kind of commodity transaction, and its security should be protected by civil and commercial law; Second, e-commerce transactions are realized through computers and their networks, and their security depends on the security of computers and their networks. At present, there are no laws and regulations specifically for e-commerce transactions in China. We should make full use of the published laws and regulations on transaction security and computer security to protect the normal conduct of e-commerce transactions, and gradually establish an e-commerce legal system suitable for China's national conditions through continuous exploration.

There are four main types of laws and regulations on transaction security in China:

(1) Comprehensive law. Mainly the provisions of the general principles of civil law and criminal law on the protection of transaction security.

(2) Relevant laws regulating the trading entities. Such as company law, state-owned enterprise law, collective enterprise law, partnership enterprise law, private enterprise law, foreign-funded enterprise law, etc.

(3) Relevant laws regulating trading activities. Including economic contract law, product quality law, property insurance law, price law, consumer rights protection law, advertising law, anti-unfair competition law and so on.

(4) Relevant laws regulating trading activities. Such as accounting law, auditing law, bill law, banking law, etc.

At present, there is no special e-commerce law in China, so it is very important to make full use of the existing administrative regulations to protect the normal conduct of e-commerce. The Interim Provisions on the Administration of International Networking of Information Networks in People's Republic of China (PRC) promulgated by the State Council (hereinafter referred to as the Provisions) and the Administrative Measures for the Security Protection of Computer Information Networks promulgated by the Ministry of Public Security (hereinafter referred to as the Measures) are two important administrative regulations that have great influence on e-commerce.

The "Regulations" and "Measures" are applicable to the international networking security protection of computer information networks of all units and individuals in People's Republic of China (PRC). These include foreigners who apply for Internet access in China, foreign-funded enterprises and foreign representative offices established in China according to law, and network security protection and management. The security protection and management of international networking of computer information networks in the Hong Kong Special Administrative Region shall be formulated separately by the government of the Region. Networking with computer networks in Taiwan Province Province, Hongkong and Macao shall be implemented with reference to the "Regulations" and "Measures".

The "Regulations" and "Measures" are adjusted to units and individuals engaged in the international networking business of computer information networks in People's Republic of China (PRC) and China. It mainly includes: international gateway channel providers, competent departments or units of interconnected units, international gateway channel providers, interconnected units and access units, and individuals, legal persons and other organizations applicable to the international networking of computer information networks. The international networking services of computer information networks mainly include: providing international access channels, access services, information bases, applying various functions provided by computer information networks, and other services related to the international networking of computer information networks.

The "Regulations" and "Measures" also stipulate necessary penalties, including warnings, fines, suspension of networking, and cancellation of networking qualifications. Through strict management, improve the whole society's understanding of the importance of security protection and management of computer information network international networking, consciously abide by the law, obey management, and fully protect the security protection of computer information network international networking.

Verb (abbreviation of verb) Intellectual property protection in e-commerce.

The core problem of e-commerce is "data information", and the legal system of intellectual property rights, as a legal means to protect intellectual property rights with information as the content, should become an important topic in the research of e-commerce legal issues. Although the technical means of information protection, such as encryption technology, can help protect intellectual property rights, an adequate and effective legal system of intellectual property rights is still very necessary for intellectual property owners to provide a certain range of rights and prevent intellectual property infringement.

Intellectual property issues involved in the network often include new problems brought by network technology to copyright, patent and trademark rights. What is most closely related to network technology is the new problem of copyright protection. Information technology not only brings new contents to the protected object of copyright system, but also challenges the original connotation of copyright and brings new problems to the determination of copyright infringement. In a word, the digital information spread in the network includes words, images, sounds, graphics, software and other intellectual achievements, and the copyright ownership and protection of these intellectual achievements also follow. It is still a question whether the traditional domestic legislation and international conventions on copyright can meet the needs of network development. In order to meet the development requirements of the network, a new thing with strong vitality, countries all over the world have revised the copyright law one after another, and relevant international organizations are also committed to the research in this field. In particular, two new treaties adopted by the World Intellectual Property Organization (WIPO), namely, the WIPO Copyright Treaty and the WIPO Performances and Recording Treaty, have made corresponding provisions on the protection and utilization of online copyright, providing reference and basis for national legislation.

In the patent field, network technology has also raised new problems. For example, whether computer software can become the object of patent system protection; The extensiveness and openness of the Internet challenge the novelty of patents. Does the inventor's communication with colleagues by email constitute "publicity" and affect the "novelty" of the invention when it is patented? The electronic application of patents also involves legal issues. These are all problems that need to be discussed and solved under the network environment.

In the field of trademarks, there are also new problems brought by network technology. For example, the "domain name" on the Internet, as the address name on the Internet, plays a very important role in distinguishing users of different websites. At the same time, the existence and registration rules of domain names also bring some problems in practice, which need to be stipulated and solved by law. Domain name was first established as a technical means, and it is not intellectual property in essence, so domain name cannot be protected as intellectual property like a trademark. However, with the increasing commercial value of domain names, people have realized that the abuse of domain names will infringe, interfere and weaken the value of trademarks or other names to a great extent. The law has begun to give domain names some intellectual property rights to protect the rights holders' interests and prevent the value of trademarks or other names from being infringed, interfered or weakened due to the abuse of domain names.

There are many legal problems about intellectual property rights related to e-commerce. Due to the openness and extensiveness of the Internet, the conflicts of intellectual property laws on the Internet are complicated, and it is difficult to find solutions to some problems in the existing legal system. In view of this situation will hinder the further development of e-commerce, many countries and international organizations are making greater efforts to this end.

Secret protection of intransitive verbs

The protection of network privacy is one of the focuses of theoretical discussion recently for four reasons:

The development of e-commerce puts forward higher requirements for practitioners.

Consumers are generally dissatisfied with the current situation of privacy protection.

International cooperation pays more and more attention to the protection of personal data.

Legislative practice needs to study the current situation of network privacy protection in other countries.

At present, many countries in the world are making laws to protect network privacy, because to protect network privacy, in addition to technical means, it is more important to strengthen legislative constraints. In this context, in order to formulate the network privacy protection law, we must refer to the legislative practice of other countries, summarize its reasonable connotation, and combine our own reality. We study this issue in order to provide reasonable suggestions for the legislative department and accelerate the pace of legislation on network privacy protection in China.

The right of network privacy refers to a kind of personality right that citizens enjoy the peace of private life and private information is protected according to law, and is not illegally violated, known, collected, copied, used and made public by others. It also means that it is forbidden to disclose some sensitive information about individuals on the Internet, including facts, images (such as photos and videos) and defamatory opinions.

Three problems in the field of privacy protection at present. Excessive collection of personal data, secondary development and utilization of personal data and personal data transaction. The protection of network privacy should also formulate corresponding rules and standardize them. So as to promote the development of e-commerce on the premise of effectively protecting personal privacy.

With the development trend of privacy protection in the world, countries around the world pay more and more attention to the protection of personal privacy. Theoretically, the research on privacy and the protection of privacy in legislation and judicature are professional. The protection of privacy is professional all over the world; The protection of privacy embodies the trend of international unity.

Three suggestions for China to formulate privacy protection law: the free flow of information is as important as the protection of personal data; Follow the principle of minimizing the use of personal data and appropriate costs; At present, it is advisable to implement legal norms to protect the right to privacy, combined with the industry's self-respect