I. Legal Issues in E-commerce
At present, the most widely used field of e-commerce is international trade. Its application has brought great benefits to enterprises in simplifying procedures, saving time and cost, and at the same time, it has also had a strong impact on the previous international trade regulations based on paper documents, resulting in a series of problems;
First, the issue of electronic contracts. Whether e-commerce can also be regarded as a written form. According to the traditional explanation or reasoning, writing is related to paper and written words, but in e-commerce transactions, companies only exchange electronic data, and the main terms of the transaction are displayed on the computer screen, so there is no traditional written form. As for whether this kind of electronic data can be regarded as written form, it has the same effect as written form, and different countries have different regulations.
Whether an electronic contract is the expression of will of the parties. Electronic contracts are concluded entirely by computers, and the process is automatic. Therefore, there are different provisions on whether the offer and acceptance issued by the computer can be regarded as the true intention of the parties.
Second, the problem of evidence law. With the continuous expansion of the scope of e-commerce transactions, there are more and more lawsuits related to transactions, among which the most controversial issue is the validity of electronic evidence. Some scholars argue that it should be regarded as written evidence, others argue that it should be classified as audio-visual materials, and still others think that EDI evidence should be regarded as a separate type of evidence. The Model Law on Electronic Commerce does not clearly stipulate this issue, nor does our country's law clearly stipulate whether electronic evidence can be used as the basis for finalizing the case.
Third, jurisdiction and application of law. In international civil and commercial cases, the determination of jurisdiction and the choice of applicable law are based on connection points, and a considerable number of connection points belong to factual factors with physical spatial significance, such as "place of conclusion", "place of performance" and "place of infringement". In the case of trading through electronic data exchange, most links in the trading process are not completed in physical space, but in virtual cyberspace. In this way, the traditional connection points representing physical space places have no corresponding position in cyberspace. Therefore, the problems of jurisdiction and application of law caused by the application of e-commerce mainly refer to how to apply traditional connection points or how to determine new connection points in international trade of e-commerce.
Second, the international experience of electronic contract legislation
From a global perspective, there are two main theories about the jurisdiction to solve electronic contract disputes:
First, the theory of relativity of jurisdiction. Scholars who hold this theory believe that cyberspace should exist as a new jurisdiction like the high seas, and new jurisdiction principles different from traditional rules should be established in this field; Any country can govern any activity in cyberspace and apply its laws to a degree and manner commensurate with the degree and manner in which the person or activity enters the cyberspace that the sovereign country can control; Parties to disputes in cyberspace can "appear in court" in relevant courts through network contact, and court decisions can also be executed through network means.
Second, determine the jurisdiction according to the location of the server. It is difficult to grasp the scope of the parties' activities on the Internet. Relatively speaking, its website is still a relatively stable factor. Therefore, the jurisdiction of network disputes can be determined through websites. The website is not the geographical location under the jurisdiction of the court. Only by finding out the geographical location related to the website can we determine the territorial jurisdiction of the court, which is not the location of the server.
This land belongs to me.
In the judicial practice of the United States in recent years, a series of precedent principles have been formed for the jurisdiction of electronic contracts. The following three principles are representative:
The first is the "proportional increase or decrease" method. Online activities are divided into three categories: 1. The defendant engaged in activities obviously under foreign jurisdiction through the Internet; 2. The defendant has published information on the Internet, but failed to further communicate with potential customers through the Internet; 3. The defendant exchanged information about the defendant's goods or services with potential customers in foreign jurisdictions through interactive Internet websites.
The court determines which court should exercise jurisdiction by examining the commercial nature and interactivity of information exchange on the website. In other words, the personal jurisdiction exercised according to the US Constitution should have a direct and symmetrical relationship with the nature of online business activities.
(2) "minimum contact" standard
The minimum contact of the Eighth Circuit Court of the United States is determined by the following five aspects: 1, the nature of the communication between the defendant and the plaintiff through the Internet within the jurisdiction; 2. The number of contacts between the two sides; 3. The relationship between the original defendant and the cause of action; 4. What benefits does the court in the plaintiff's jurisdiction have for its local residents? 5. It is convenient for both parties to accept court proceedings.
(3) "Other activities" standard
According to this standard, the internet website alone is not enough for the court to exercise personal jurisdiction over the defendant. As long as the defendant has other activities within the jurisdiction of the court, such as concluding contracts or engaging in commercial activities within the jurisdiction of the court, the court can exercise jurisdiction over the defendant.
Third, the countermeasures to promote the development of e-commerce.
(1) electronic contract
1, written form problem. In the existing e-commerce activities, the most conservative and most in line with the written form requirements related to the law is that after the two parties reach a preliminary intention online, one party prints out a written agreement, signs it and sends it to the other party, and the other party receives and signs it before the contract is established. It should be said that this practice undoubtedly meets the requirements of the current law for written form, but it should be noted that if online contracts are concluded in this form, the convenience advantage of online transactions will be lost. Whether the data message transmitted through the network can be regarded as written form is an unsolved problem in the current laws of many countries.
Provisions of foreign laws on written form: The laws of different countries have different requirements on the form of contracts. Generally speaking, the parties are free to choose the form of the contract, but for some contracts, the laws of many countries stipulate that it must be in writing and signed by the parties, otherwise the validity or enforceability of the contract will be affected. Provisions of Chinese law on written form: Article 10 of China's contract law stipulates that the parties may conclude a contract in written form, oral form or other forms. Article 1 1 stipulates that the written form refers to the forms that can tangibly express the content, such as contracts, letters, data messages (including telegrams, telex, faxes, electronic data interchange and emails). Chinese law regards electronic data as one of the written contracts, which completely solves the legal problems in the form of electronic contracts. The written form mentioned here should meet the following three requirements: first, it should be based on written evidence; Second, the content must include the rights and obligations in the contract; Third, there are signatures or seals of both parties, but one letter and data message must be confirmed by another letter and data message. Provisions of international organizations on the written form of electronic contracts: The most important international document in the international legislation of online contracts is the Model Law on Electronic Commerce completed by the United Nations Commission on International Trade Law on 1996. In view of the existing laws, there are three articles in this law that stipulate the written form. Article 5 of the Model Law stipulates that the legal effect, validity and enforceability of certain information shall not be denied just because it is in the form of data messages; Article 6 defines "writing" as "if the law requires information to be in writing, and if the information contained in a data message can be retrieved for future reference, that requirement is met". Article 1 1 stipulates that, as far as the conclusion of a contract is concerned, unless otherwise agreed by the parties, an offer and its acceptance may be expressed by means of a data message. If a contract is concluded by using data messages, the validity or enforceability of the contract shall not be denied simply because of the use of data messages.
2, whether the electronic contract is the true meaning of the parties. All countries' laws think that a contract is an expression of the parties, that is, the consent of both parties. In the traditional process of concluding a contract, this kind of expression of will is basically done manually, and an important feature of an electronic contract is that the conclusion of a contract does not require the direct participation of both parties, but is automatically operated by an electronic computer according to a predetermined procedure. In this case, the automatic processing of the computer embodies the meaning of both parties to the contract. Because the electronic computer system is not the final decision maker, its operation is still under the control of people, and its programs are also written by people. The meaning of the parties is reflected through the procedures compiled or approved by them, but this true meaning is formatted, electronic and automatic. As early as 1992, the European Sports Commission clearly pointed out in its research report on concluding contracts through EDI that the person who has the ultimate control over the operation of the computer can be regarded as the person responsible for the offers and commitments made by the computer.
(2) the evidential effect of electronic contracts
There are two main problems of evidence law caused by electronic contracts in e-commerce trade: (1) whether electronic documents stored in computers can be adopted as evidence by the court in litigation and the value of evidence. Traditional trade documents can be preserved for a long time because of their tangible characteristics. If they are changed or added, they are easy to find, and if they are in doubt, they can be identified by experts. Therefore, the laws of all countries consider it admissible as evidence. Electronic files use magnetic media, and the data stored in them can be changed at any time, and even if they are changed or added, they will not leave traces, so whether they can be adopted as evidence has become a legal issue. (2) Many countries require the submission of original documents in the evidence law, but electronic contracts transmit electronic information between computers, and electronic data are recorded.
In the computer, it's hard to say which is original.
With the popularization of computers in China, electronic evidence, as litigation evidence of cases, will appear frequently in litigation, especially after the electronic data exchange system is widely adopted, electronic data will become an important form of economic information in China. Therefore, China should clarify the legal effect of electronic data in legislation. China's first electronic evidence, as the final basis, caused great repercussions in the society after the judgment of the court in Pudong New Area. At this point, the author agrees with Mr. Shen that the legal effect of electronic evidence should be given through legislative procedures, not through judges' "making laws".
(3) Jurisdiction and law application of private international law involved in electronic contracts.
The system of law application or choice of law in private international law is a legal system that divides the legal jurisdiction of various countries on the basis of geographical standards. It uses what some people call "allocation law" to allocate controversial foreign-related civil relations to the laws of a certain country, thus solving the conflict between the extraterritorial effects of foreign laws and domestic laws, or the extraterritorial effects of domestic laws and foreign laws. When formulating conflict norms or solving the problem of choice of law, it is necessary to link some civil legal relations with the laws of a specific country, that is, to determine the applicable law by determining the connection point.
Fourth, the legislation of jurisdiction over electronic contract disputes in China.
In China, only Articles 1 1, 16, 26, 33 and 34 of the Contract Law roughly stipulate the written form, the effective time of offer and acceptance and the formation of the contract. Although the regulation of more than 200 words * * * fills the gap in domestic electronic contract legislation, it is seriously behind other countries in the world. As for the provisions of jurisdiction over electronic contract disputes, there are even fewer. In view of the difficulty in determining the territorial jurisdiction of electronic contract disputes, an authoritative and efficient legislative body should be organized to make full use of and learn from international resources to determine new applicable rules of law. The author believes that at present, the legislative focus of solving electronic contract disputes in China is mainly in the following two aspects:
(A) the principle of autonomy of will
Allowing the parties to establish and choose the court that governs the dispute by agreement is the most full embodiment of the freedom of contract. When signing a contract, both parties to the contract can negotiate to determine the court to be submitted when the dispute occurs, so as to avoid the confusion of choosing jurisdiction after the dispute occurs. Of course, autonomy of will should not evade the mandatory provisions of laws and related laws.
(2) Establish new contact points according to the principle of nearest contact.
At present, this principle has been paid attention to by all countries in the world when the parties have no choice of jurisdiction by agreement. At present, in the traditional territorial jurisdiction, the common connection points are: nationality, domicile or residence, commerce, property, behavior and court. According to the principle of closest connection, new contact points should be established in legislation, and more flexible and flexible locations with the closest connection with contracts should be selected. The following connection points can be considered: (1) In an electronic contract, it is the easiest to determine which ISP (network service provider) the parties belong to, with "the location of the ISP" as the connection point, and the jurisdiction of the court is exercised by the location of the ISP. Using this method to determine the jurisdiction of the court can make the parties to the contract very clear where the dispute is under the jurisdiction of the court, and also solve the disputes and confusion in jurisdiction. (2) Relatively speaking, the website is the relative location of the parties, so we can consider finding out the geographical address associated with the website to determine the jurisdiction of the court, and this geographical location should be said to be the location of the first push server. Therefore, with "the location of the server" as the connection point, the court of the location of the server corresponding to the party's website can have jurisdiction over the dispute.