First of all, the characteristics of electronic contracts are as follows:
1. Two or more parties to a contract operate on the Internet and may not meet each other. Information such as contract content is recorded in computer or disk, and its modification, circulation and storage are all carried out in computer.
2. The traditional way of signing and stamping indicates that the contract is effective has been replaced by digital signature (that is, electronic signature).
3. The effective place of a traditional contract is generally the place where the contract is established, while 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.
4. Electronic data on which electronic contracts depend are easy to disappear and change. Electronic data stored in magnetic media is invisible, and it is not easy to leave traces when it is altered or forged.
Electronic contract as evidence has certain limitations. As the carrier of contract, electronic data cannot be directly read by human eyes like traditional paper contract documents, unless it is printed on paper or displayed on a computer screen. Thus, the new form of electronic contract lies in its carrier, that is, the use of electronic data. Because the carrier of electronic contract is very different from traditional written documents, some provisions of current legal norms have an impact on the legal effect and effectiveness of electronic data as the carrier of electronic contract. If the legal effect of electronic data is not solved, it will be impossible to determine the legal effect of electronic contracts, which will certainly hinder the normal development of e-commerce. Only by ensuring the effective use of electronic data can all kinds of e-commerce activities be widely carried out. Therefore, the legal effect of electronic data can be said to be the least and most basic legal issues related to e-commerce.
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Second, the identification of the legal effect of electronic data.
1, How do the Model Law on Electronic Commerce and Functional Equivalence solve the problem of written form of electronic data? The Model Law on Electronic Commerce puts forward a scheme.
The Model Law on Electronic Commerce was promulgated by the United Nations Commission on International Trade Law in 1996. This law is aimed at the situation that "the transmission of information with legal significance in the form of non-written messages may be affected by the legal obstacles encountered in the use of such messages or the uncertainty of the legal effect and effectiveness of such messages", and provides a set of internationally recognized rules for legislators in various countries to explain how to eliminate such legal obstacles. Therefore, this law is actually a legal system about the validity of electronic data.
The Model Law on Electronic Commerce adopts a method of "functional equivalence", which is based on the analysis of the purposes and functions of traditional written requirements to determine how to realize these purposes or functions through electronic commerce technology. The specific way is to pick out the basic functions of written form requirements and take this as the standard. Once the data message meets these standards, it can enjoy the same degree of legal recognition as the corresponding written document with the same function. Therefore, Article 6 of the Model Law on Electronic Commerce stipulates: "If the law requires information to be in writing, and if the information contained in the data message can be retrieved for future reference, that requirement is met. In this article, the basic standard of "writing" in e-commerce environment is "available for future reference", which is a legal requirement for the written effect of electronic data and an equivalent functional requirement.
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Third, the legal effect of electronic contracts.
(1) As the expression of the true meaning of all parties in e-commerce, electronic data has the same legal effect as written documents, and it cannot be discriminated just because it is not in the form of traditional written documents.
(2) With the necessary technical support, the electronic data of electronic signature meets the requirements of written signature and written original in traditional laws, and has the same legal effect as "signed document" and "signed original".
(3) In any legal proceedings, electronic data has the same acceptability as other traditional forms of evidence, and it will not be accepted because it is in the form of electronic data or affect its evidence effectiveness.
(4) The electronic contract with electronic data as the carrier will not affect its legal effect, validity and enforceability because of adopting this carrier form. As long as it meets other provisions of the law, such as no fraud, it enjoys the same legal effect as the traditional written contract.