On March 16, 2005, Mao filed a lawsuit in the court of donghu district, Nanchang, and sued Beijing Sunshine Valley Information Technology Co., Ltd., the owner and operator of Sina's "One Beat Network", demanding that it compensate the economic loss of 3,400 yuan and bear all the litigation costs (including travel expenses). Donghu district court held that Sina's "one-shot network" provided a platform for both buyers and sellers, and had a minimum review obligation for sellers. However, "Yipai. com" provided completely false trading information to netizens. The plaintiff traded with false Fengxiang Technology based on his trust in this well-known website, and the losses caused by "Yipai. com" were unavoidable. After mediation, the defendant expressed his willingness to compensate the plaintiff for the loss, but asked the plaintiff to help cooperate with the public security organ to solve the case. At present, the dispute case caused by online shopping is the first case in our hospital. With the continuous expansion of marketization, it is the general trend to carry out online shopping and online business activities. How to safeguard the legitimate rights and interests of netizens and standardize the behavior of network operators is a new topic before our law enforcers, which should attract the attention of the whole society.
Nowadays, with the rapid development of the Internet, traditional trading methods are also being impacted by the Internet, and various online transactions such as online payment, online securities trading and online shopping are gradually moving towards our daily life. Online transaction is a kind of transaction mode with the Internet as the operating platform and data transmission medium. Compared with traditional trading methods, online trading has the advantages of high speed, rich information and convenient operation. Online transactions in China are still in the "primary stage", and the foundation of online transactions is still quite weak. In this context, this new thing inevitably exposes many problems in the development process: First, Chinese netizens have online shopping phobia. Sun Tongyu, general manager of Taobao (www.taobao.com), the second largest online auction website in China under Alibaba, said: "China people really want to shop online, but many people are afraid to take the first step. They have many concerns: Is online payment safe? Will the products I buy be defective or even fake? " Today, among the 90 million Internet users in China, only 65,438+00% shop through the Internet, compared with 38% in the United States. Analysts also pointed out that since cash is still the main means of payment in China, about a quarter of online transactions are settled by traders themselves, while only 30% are paid through the Internet. The data also shows that China has a population of 654.38+0.3 billion, but the number of credit cards issued is less than 2 million. The reason is that China people lack sufficient trust in online shopping. Secondly, the postal system is unreliable and there are many problems in distribution.
The emergence and development of online transactions is the need of the times, which will certainly promote the reform of traditional related businesses and have a far-reaching impact on the future society. At present, China has promulgated the Regulations on the Management of Commercial Passwords, the Regulations on the Management of Network Security of Computer Information Systems, the Measures for the Management of Internet Information Services and the Interim Measures for the Management of Online Banking, which also provide certain legal protection and support for the development of online transactions in China. But at the same time, with the standardization and improvement of China's information infrastructure, the conditions for implementing online transactions have gradually matured, with great development potential, and there is still a big gap between relevant legal support and its development scale. At present, China's legislation on e-commerce is basically blank. Inter-industry supervision is ineffective for online transactions, and legal rules are hard to agree with. The relevant legal norms and effective market credit system are extremely imperfect, which seriously affects the development of online transactions and provides an opportunity for criminals. There are quite a few legal problems that cannot be avoided and need to be solved urgently.
First, the cancellation of the offer. China's current Contract Law stipulates that an offer can be revoked, except in cases where the law stipulates that it cannot be revoked, but the notice of revocation must arrive before the offeree sends a notice of acceptance. In online transactions, because the transmission speed of network data is extremely fast, the offer is almost sent and arrived at the same time, and the receiver's computer often has the judgment function of automatically reviewing documents and can make a promise in time, so the probability that the offeror can cancel the offer is very small. In my opinion, the characteristics of the network itself are fast and short distance, and risks and benefits coexist. Online trading is the best choice to seize business opportunities. If you are unwilling to take risks, you can choose traditional trading methods. In addition, when making an offer, the network will generally let the user reconfirm whether the content of the offer is correct. If confirmed, it can be regarded as giving up the right to cancel the offer.
Second, the issue of electronic signature. Network transaction contract (or electronic contract) refers to a non-paper digital contract reached through data messages in a dedicated or open network environment. Electronic contracts can be reached through e-commerce websites, e-mails or electronic data exchange. Judging from the existing practice in various countries, traditional contracts still mainly rely on the signature or seal of the parties, and relevant laws often require the signature or seal of the parties. As an electronic transaction, online transaction is paperless, which makes it different from the traditional contract transaction form. At this time, as a sign of the establishment of the contract, the signature problem has encountered challenges. If the contract needs to be signed and sealed, the advantages of electronic transactions will not be reflected.
Third, the collection of transaction evidence. China's laws have not clearly defined the legal status of data message evidence and the specific requirements for its identification. Paperless electronic transactions, it is very difficult to obtain evidence in case of disputes. At present, academic circles have two views on what kind of evidence data messages belong to: one is audio-visual materials; One is documentary evidence. According to Article 66 of China's Civil Procedure Law, audio-visual materials should be combined with other evidence to determine their evidential force. Therefore, if electronic evidence is classified as audio-visual materials, its probative role will be greatly reduced. Article 1 1 of the Contract Law stipulates: "Written form refers to the form that can tangibly express the contents contained in contracts, letters and data messages (including telegrams, telex, faxes, electronic data exchange and e-mails)." This shows that data messages have been regarded as written materials in the Contract Law, and the author is in favor of classifying data messages as documentary evidence.
Fourth, the responsibility of the parties when accidents and failures cause losses. The normal development of online trading business is highly dependent on the service system, and the civil legal liability caused by accidents and obstacles in the network system is a matter of great concern to banks and customers. The law of our country has not regulated this problem yet. The author thinks that network crimes such as virus invasion and hacker attacking network system should not be included in force majeure events, because the security system of online transactions is an important technical system to ensure the safety and reliability of online services. If the system breaks down or is deciphered, thus causing economic losses to customers, the provider of the security system will bear corresponding civil liabilities.
Fifth, whether the owners and operators of the network service system bear legal responsibilities to the parties. The author believes that the network service system has the duty of care when providing network platform services, and has the responsibility of review for buyers and sellers. Based on the full trust in the network service system, buyers and sellers also contributed to the transaction behavior. Once the network service system provides false transaction information, it will inevitably cause unnecessary losses to the parties. According to the provisions of the General Principles of Civil Law, the owners and operators of network service systems should bear corresponding civil liability for compensation. At the same time, as the parties, they also have the obligation to assist the owners and operators of the network service system to exercise the right of recourse, which also reduces the opportunities for criminals.
With the development of socialist market economy and the establishment of credit system, online transactions will have broad prospects. At present, China is gradually opening up the express delivery market. China Post will soon face the competition from DHL, UPS and FedEx, and the market environment will gradually improve. Some websites in China are also trying new distribution mechanisms, such as setting up a bicycle distribution team composed of young people, who will be responsible for collecting users' payments, making full use of China's abundant labor resources and showing the bright future of online trading.
Excerpted from Douding.com.