On the legal issues of e-commerce 1 on the current legal system of e-commerce in China
Abstract: With the development of Internet technology, e-commerce, as a booming business model, has spread rapidly in China and become an important driving force for China's economic development. However, the legal system related to e-commerce is relatively backward, which hinders the development of e-commerce to some extent. Actively studying the transaction mode of e-commerce and establishing and perfecting the legal system for regulating e-commerce transactions can not only protect the rights and interests of the parties engaged in e-commerce activities, but also promote the healthy development of e-commerce activities.
Keywords:: e-commerce legal system improvement
In recent years, China's e-commerce has developed by leaps and bounds, and has become an important driver of China's economic development. It is particularly important to note that the Shanghai Free Trade Zone, which was established on 20 13, has made it clear that foreign investors in e-commerce value-added telecommunications services can hold shares, and e-commerce has a good development prospect. Good technical support and economic atmosphere are indispensable factors for the success of e-commerce, but the sustained and healthy development of e-commerce needs the support of corresponding legal systems. Only by establishing a perfect system of legal norms related to e-commerce, adjusting the legal relationship between the parties involved in e-commerce with perfect legal norms, and clarifying the rights and obligations of all parties to the transaction, can the scientific development of e-commerce be guaranteed and promoted.
I. Overview of legal norms of electronic commerce
The so-called e-commerce mainly refers to the collection of various business activities with electronic transactions and electronic services as the core and using the Internet. Electronic transactions with goods as the main object are called electronic transactions, and electronic transactions with trade in services as the main object are called electronic services. They are independent of each other and are the basis of e-commerce. Only on this basis can e-commerce form a complete system architecture.
The so-called e-commerce legal system, in short, is the general name of the legal norms that adjust various social relations that occur in e-commerce activities. Compared with traditional business activities, e-commerce based on computer network has not changed the essential attributes of its business activities, so all kinds of social relations in e-commerce activities are of course bound by the legal norms regulating business activities in China's current legal system. However, we must admit that e-commerce has its particularity, and the existing legal system is often difficult to deal with the new special digital problems in e-commerce activities, which requires the establishment of an e-commerce legal system suitable for the particularity of e-commerce, which is not only a special legal norm applicable to e-commerce activities, but also an important part of the existing commercial law system.
Second, China's current e-commerce legal system
(A) China e-commerce legislation
Because the rapid development of e-commerce has had a great impact on the traditional civil and commercial legal system in China, China has begun to study and formulate the relevant legal system of e-commerce and achieved certain results. First of all, there are six articles in the Contract Law related to e-commerce activities. Article 1 1 stipulates the written form, which clearly includes the data message in the written form of the contract, and legally confirms that the data message has the same effect as the traditional written form; Paragraph 2 of article 16 and paragraph 2 of article 26 stipulate the arrival time of the offer and acceptance to conclude a contract in the form of data messages; Article 34 clarifies the place of formation of a contract concluded by using data messages; Article 24 clearly defines the calculation of the acceptance period when exercising data messages. It can be said that "Contract Law" outlines a general framework of China's e-commerce legal system to a certain extent, and provides the premise and conditions for the development of e-commerce legal system. Secondly, the detailed rules for the implementation of the patent law also indirectly recognize the validity of data messages. Thirdly, the electronic signature law, as the first law in the field of informatization in China, establishes the legal effect of electronic signature, clearly stipulates how to standardize the behavior of electronic signature, safeguard the legitimate rights and interests of the parties involved in e-commerce, ensure the safety of electronic transactions from the legal system, and promote the development of e-commerce. In addition, many administrative regulations and rules have also made major breakthroughs in e-commerce legislation. For example, the "Interim Measures for the Administration of Online Securities Entrustment" issued by the China Securities Regulatory Commission officially recognized the legitimacy of the entrustment method of issuing securities trading instructions and obtaining trading results through the Internet.
Although gratifying achievements have been made in the field of e-commerce legislation, it is undeniable that quite a few laws and regulations in the field of civil and commercial affairs in China run counter to the legal system of e-commerce. Many contracts, such as the guarantee contract, insurance contract and insurance policy stipulated in the Guarantee Law, require written form, while the Negotiable Instruments Law stipulates that bills should be in written form and require signatures or signatures. At present, the vast majority of existing civil and commercial laws require written form as the basis.
(B) China's current legal system of e-commerce problems
It is not difficult to see from the above analysis that although China's e-commerce legislation has made gratifying achievements, it is undeniable that there is still a long way to go to establish a complete e-commerce legal system.
At present, the legal system of e-commerce in China is still relatively low, and the legislation of e-commerce is not dominated by the state, but by the administrative department, lacking a unified and special e-commerce law. The legal provisions related to e-commerce are scattered in some laws, administrative regulations and administrative rules, and have not formed a standardized and complete system. And there are legislative gaps in many aspects of e-commerce. In addition, the level of legal norms related to e-commerce is low, and most of them belong to administrative regulations, which cannot be satisfied at all. For example, the recent e-commerce price war has fully exposed the current situation of disorderly e-commerce competition caused by imperfect legal system. In addition to the problems of e-commerce legal system, China's e-commerce legal system still lacks a perfect credit system. Only by combining personal information with its credit and raising the cost of dishonesty can we better promote the development of e-commerce in China. Therefore, in view of the above problems, we must improve the legal system of e-commerce in China as soon as possible.
Third, the improvement of China's e-commerce legal system.
(A) the principles of improving China's e-commerce legal system
Compared with traditional business activities, e-commerce has its particularity. Buyers and sellers usually don't meet face to face, so the development of e-commerce will inevitably encounter many special problems, such as the choice and standardization of e-commerce operation mode, the confirmation of qualifications of both parties, the rights and obligations of both parties, the legal effect of digital business behavior and related data messages generated in the process of e-commerce, the standardization of electronic settlement, the protection of intellectual property rights, tax management and how to solve disputes and disputes between both parties in e-commerce transactions. In view of the above problems, we should adhere to the following principles to improve the legal system of e-commerce in China:
First, adhere to the principles of encouraging freedom of trading, respecting the autonomy of the parties, allowing and encouraging the development of e-commerce, and encouraging the continuous innovation of payment service institutions; Second, give full play to the role of industry self-discipline and recognize the normative role of industry rules in e-commerce transactions to cope with the lack of legal provisions; Third, adhere to flexible legal provisions and rules to cope with the new situations and problems emerging in the rapid development of e-commerce and reduce its lag. (B) Suggestions to improve China's e-commerce legal system
The healthy development of e-commerce depends to a great extent on a complete legal system of e-commerce. Perfecting China's e-commerce legal system and establishing a systematic and complete e-commerce legal system need a long process, which cannot be achieved overnight. It is necessary to revise and improve the existing laws and regulations and formulate new laws and regulations.
1. Formulate and improve relevant laws to fill the legal gaps in e-commerce.
At present, there are still legal loopholes in China's e-commerce legislation in many aspects, and filling these legal loopholes is undoubtedly of great significance to the improvement of China's e-commerce legal system. It is necessary to improve the contract law, add the provisions on the effectiveness of electronic signatures and how to identify them in contract issuance, and further clarify the rights and obligations of buyers and sellers under e-commerce activities, especially the provisions on the protection of buyers' rights as consumers and the remedies when their rights and interests are infringed. The third-party payment intermediary plays an important role in e-commerce activities, and its status as a new financial subject should be confirmed by law, and its establishment conditions, rights and obligations and legal responsibilities should be stipulated by law.
2. Comprehensively clean up the existing laws and regulations that hinder the development of e-commerce.
Many of the current legal systems of e-commerce in China are based on the paper environment of traditional commercial transactions, and many rules have not adapted to the development of current e-commerce activities, and even conflicts will arise in the application of laws, which seriously hinders the development of e-commerce. Therefore, clearing up the existing laws and regulations that hinder the development of e-commerce is an important link to improve the legal system of e-commerce in China. For example, many common problems in e-commerce transactions, such as digital signature, identity confirmation and the effectiveness of electronic evidence, are clarified, supplemented and improved, and the clauses that run counter to and conflict with e-commerce transactions are cancelled, so that China's legal provisions can meet the development requirements of e-commerce activities.
3. Establish a supporting credit mechanism.
Introducing credit mechanism and establishing credit system in e-commerce transactions is the guarantee to promote the healthy development of e-commerce activities. It directly affects the performance and normal service of electronic payment, and determines the efficiency and quality of e-commerce transactions. Under the condition of e-commerce, buyers and sellers cannot know each other's credit status information because they are not face-to-face transactions. Intuition, online communication and offline investigation are the basic means to judge the credit situation of the other party. However, the cost of offline investigation is high, and intuition and online communication are unreliable. Therefore, the problem of honesty is easy to appear in transaction information, supply and payment. If the problem persists for a long time, people will lose confidence in e-commerce. Therefore, we must speed up the improvement of China's credit management system, establish a blacklist system for dishonesty, and ban and fine those who fail to keep their promises.
4. Pay attention to the integration with the international electronic commerce law.
The scope of e-commerce activities is not limited to China, and it often breaks through national boundaries. Therefore, China's e-commerce legal system should attach great importance to the integration with international e-commerce legislation. The United Nations Commission on International Trade Law has formulated a model law, which is of great significance for regulating international e-commerce activities and laying a foundation for the development of e-commerce in the world. Moreover, China has joined the WTO and needs to compete in the international market. Therefore, China should pay full attention to the compatibility and unification with the international e-commerce law when legislating e-commerce.
References:
[1] Wan Yixian. On the legal issues of e-commerce centered on online transactions [M]. Law Press, 20065438+0; 32
[2] Wang Liming. E-commerce Legal System: Impact and Response [M]. People's Court Press, 2005.
[3] Zhou Zhonghai. Introduction to electronic commerce law. Beijing University of Posts and Telecommunications Press, 2000
[4] Shen Zhu. Several problems of e-commerce legislation in China [J]. Hebei Law, 2001; 1: volume 19
[5] Jiang Po. Legal Adjustment of Electronic Commerce in China [J]. Politics and Law, 2000; No. 1
Legal Issues in E-commerce (2) Legal Issues in E-commerce
Abstract: With the increasing popularity of the Internet in the world, human society has entered a brand-new era of network information. E-commerce, a completely different transaction mode from the traditional business model, came into being, which had a great impact and influence on the traditional concept and trade mode. Therefore, establishing a legal framework to regulate online transactions can not only safeguard the interests of all parties in online transactions, but also ensure the smooth progress of online transactions.
[Keywords:] e-commerce legal issues solutions
E-commerce is a new type of trade that has developed rapidly and gained popularity relying on the Internet. Its ultimate goal is to realize the electronization of all aspects of trade activities and the unification of online business flow, logistics, currency flow and information flow. As a commercial law field to adjust this new thing, e-commerce law will play an increasingly important role in real business relations with the process of global electronic transaction networking. This paper discusses some legal issues in e-commerce.
First, the historical evolution of e-commerce
Since 1990s, more and more individuals and families have computers, IT enterprises have sprung up like mushrooms after rain, and traditional industries are increasingly aware of the importance of using the Internet to expand their business. From a global perspective, the number of netizens has increased geometrically; In China, the Internet has developed rapidly, and China has become the third largest Internet user country after the United States and Japan. A new economic model-e-commerce came into being.
Since the mid-1990s, the rapid development of electronic information technology and the popularity of the Internet have provided enterprises with a promising global electronic virtual market. The direct, fast and low-cost characteristics of conducting business transactions through the Internet have greatly improved the efficiency of business activities, making e-commerce the biggest hot spot in Internet applications. Although it is still in its infancy, the prospect of enterprise e-commerce is promising. Because it has the characteristics of breaking the time and geographical restrictions and being convenient and quick, it has become a means of international business, creating huge profits for all walks of life in China. However, the rapid development of e-commerce based on modern network technology not only brings convenience, efficiency and wealth to human society, but also poses a severe challenge to the legal system that has been effective for a long time to adjust the traditional commercial transaction relationship in various countries.
China's e-commerce is booming without e-commerce law, which has involved related litigation issues. Therefore, how to standardize e-commerce, bring it into the legal track, and then promote its healthy and orderly development has become a top priority. At present, there is no unified "Electronic Commerce Law" in China, but the legal normative documents related to electronic commerce are being formulated intensively, and some have been promulgated. For example, the Contract Law of People's Republic of China (PRC) regards the contract formed in the form of data message as one of the legal forms of contract, and stipulates the establishment standard of contract offer and acceptance reached in the form of data message. In the current legal situation of e-commerce in China, most of the normative documents still stay at the level of good e-commerce entrance, that is, access system, and the legal provisions on specific transaction norms are extremely scarce.
Second, the legal issues in e-commerce transactions
Intellectual property protection.
The protection of intellectual property rights embodied in e-commerce is first embodied in the copyright protection of literary and artistic works, computer software, music and movies on the Internet. From the source of works, network infringement can be divided into three forms; Uploading from traditional media to the Internet, the website plagiarizes the content of other websites, and downloads and publishes the content of the website on traditional media for publication; Although all these behaviors are similar to "copying", the information published on the Internet exists in digital form, which is different from the traditional media such as words, sounds and images, and the concept of online communication is also different from that of traditional media communication. Therefore, the existing copyright law is inevitably stretched in application.
Some websites publish the registration code or registration procedure of * * * software on their web pages, which actually constitutes an infringement of the copyright of computer software. Although the trial version of * * * software can be downloaded for free, the author has only provided a limited or limited number of demonstration versions to the public. Once the registration code is widely spread on the Internet as a password by others, everyone who is not authorized can use the software at will, which infringes on the rights and interests of designers and is actually equivalent to illegally copying the software. In order to protect technological progress, this kind of infringement of software copyright must be effectively curbed, and criminal responsibility should be investigated if the circumstances are serious.
With the growing influence of the Internet, all walks of life have begun to pay attention to online publicity, and cybersquatting has become another new problem that plagues the legal profession. Domain name application is based on the principle of prior registration, and the names or trademarks of some well-known domestic and foreign enterprises are often registered. Because the legal systems of intellectual property rights in various countries basically do not involve this field, we can only learn from some provisions of the Trademark Law in practice. The judicial organs generally only protect the domain names of well-known enterprises, but most domain name disputes still cannot be effectively resolved.
2. Protect consumer rights and interests
Internet service belongs to the service industry, and it also faces thousands of online consumers in Qian Qian. Therefore, when the network access service provided by ISP is defective or causes losses to consumers due to negligence, such disputes should be subject to the protection clauses of the Consumer Protection Law for consumers who receive services. The provider shall bear the corresponding liability for damages. In addition, online advertising is produced with the development of the Internet, and most online content providers regard online advertising as one of the important financial resources. As ICP does not have the corresponding qualification as an advertising operator in the Advertising Law, how to restrain the behavior of ICP in advertising business and whether it can apply the Consumer Protection Law to claim compensation from ICP when the legitimate rights and interests of consumers are infringed by false advertisements on the Internet are further highlighted. Accelerating the perfection of legislation is the fundamental way to solve the disorder of online advertising at present.
At the stage when traditional laws cannot be fully applied to e-commerce, the best way to protect the security of transactions is to clearly define the rights and obligations of buyers and sellers as far as possible to avoid unnecessary economic disputes and complicated lawsuits. For legislators, the current feasible method is to comprehensively examine the relevant laws and regulations within the current legal framework and make necessary amendments to make the legal provisions suitable for the operation of e-commerce; For those brand-new legal categories derived from e-commerce, we should start to formulate new laws and regulations. In the future, we should consider enacting an "Electronic Commerce Law" to systematically accommodate all the contents related to electronic commerce, so that the development of electronic commerce in China has a practical legal guarantee.
3. Jurisdiction over disputes
There is no recognized convention on jurisdiction over civil disputes in the world, but all countries attach great importance to it because it involves national sovereignty and the interests of their own people. In traditional commercial and trade activities, there is no problem in determining jurisdiction because these geographical factors are relatively fixed. Internet is a virtual world without national boundaries, and transnational transactions often occur in e-commerce, which will inevitably involve how to determine the jurisdiction.
In order to avoid unnecessary disputes caused by different standards adopted by countries in determining jurisdiction, the international community must negotiate in this field as soon as possible and reach some basic understandings. Otherwise, some countries may abuse their jurisdiction, or the effective judgment made in one country will be difficult to enter substantive enforcement procedures because the jurisdiction dispute is not recognized by the other country, which will eventually damage the rights and interests of litigants and endanger the healthy development of e-commerce. The e-commerce directive just passed by the European Parliament in May this year clearly points out that no matter where the domain name and server of a website are, the actual business premises of the parties are regarded as their business premises.
Third, speed up the improvement of e-commerce legal norms.
Although we know that economic development is often ahead and legislation is behind, we must not ignore the legislation of e-commerce and network economy and the related economic environment. Facing the booming network economy and e-commerce, we should create an environment suitable for its normal development as soon as possible.
E-commerce legislation has two outstanding characteristics: first, it involves a wide range, involving the interests of various departments, industries and aspects; Second, it is highly technical, especially the computer communication network, which is not fully understood by general legal experts. In view of this, it is necessary for the national legislature to organize relevant experts to participate and cooperate with each other, taking into account the interests of all sectors of society and the technical characteristics of e-commerce. On the premise of embodying the technical characteristics of e-commerce law, the legislature should try its best to embody the interests and requirements of all parties, make it fully conform to the laws of e-commerce activities, and make it a real e-commerce promotion law, rather than a tool for a certain department or group to seek benefits.
In e-commerce transactions, there is no legislation or relevant regulations on how to deal with the losses and network infringement caused by network failure or malicious invasion of hackers to netizens or both parties. These obstacles restrict the development of e-commerce. The actual development of e-commerce will make the market have no boundaries, break regional monopoly and even cross borders. We believe that in the near future, China's e-commerce network will be connected with other countries to truly form an international e-commerce transaction network. If the legal problems in this area are not solved in time, but the traditional commercial transactions are still repeated on the developed e-commerce network, it will lead to unlimited legal proceedings.
Many countries have had a heated debate in the process of e-commerce legislation. Some people even think that e-commerce legislation is a restriction on its development. However, most people think that the fundamental purpose of legislation is not to restrain e-commerce, but to ensure the development of e-commerce, so that all traders can foresee the legal consequences of their trading behavior and protect legitimate trading behavior by law. In the process of e-commerce legislation in China, there will be various arguments about the necessity and legal content of legislation, but we believe that e-commerce legislation will really promote China's economic development and enable China to seize the new development opportunities brought by new technologies and move towards an economic power in the new century.
References:
Dan Wenhua. Legal Issues of Electronic Commerce [J]. Essays on Civil and Commercial Law, 2006(2)