Man has entered the information and network of 2 1 century, which is a change from atom to bit. The integration and development of computer and communication technology has caused changes in human society, which is reflected in the commercial legal system, that is, the formation and development of e-commerce law.
Technically, e-commerce is a media change in business transactions, that is, electronic information replaces the traditional written form. On the surface, at best, it is a change in the form of media in commercial transactions. However, this small change has brought about a broad and profound revolution, and all forms of transactions have inevitably evolved. From the making of offer and acceptance to the performance of contract, it has become brand-new; From the establishment of the company to liquidation, from securities issuance to listing and trading, and even the circulation of bills and currency, unprecedented changes will occur.
The motive force for e-commerce to quickly replace traditional trading means lies in the economic aspect first. The processing cost of each transaction document has dropped many times, but the speed has increased several times. This is the basis for enterprises and consumers to adopt e-commerce. Although e-commerce has abandoned paper means in form, in essence, it still and must maintain the legal values formed by people in written transactions for thousands of years. Because it is formed in written form, the way of risk sharing and evidence provision between the parties has been deeply rooted in the hearts of the people, forming a specific concept of fairness. Therefore, in order to attract consumers to join this emerging market, whether it is technology developers or suppliers, or legislators and judges, it is not enough to start with the speed of e-commerce, but also to consider how to link it with traditional legal values. As a result, the functions of electronic information receipt notification, electronic signature and electronic authentication have appeared in technology. At the same time, in relevant legal systems, legal means such as replacing written concept with data telecommunication, replacing handwritten signature with electronic signature, and replacing traditional identification method with electronic authentication have appeared. These abstract the basic legal functions of the written transaction form, find out the technology and legal means with similar value in the electronic transaction form, adjust the e-commerce relationship after recombination, and form the legal field, namely the so-called e-commerce law.
This paper intends to make a preliminary discussion on the concept, adjustment object, characteristics and principles of e-commerce law in order to attract more attention and promote the research of e-commerce law.
First, the reality of e-commerce law and its significance
1. the reality of e-commerce law
The development of e-commerce law, a new legal field, can be described at least from the following aspects.
First, from an empirical point of view, in recent years, many countries and international organizations in the world have formulated a large number of legal norms to adjust e-commerce activities and formed many e-commerce legal documents.
As far as international organizations are concerned. The United Nations Commission on International Trade Law (hereinafter referred to as UNCITRAL) has presided over the formulation of a series of legal documents regulating international e-commerce activities, mainly including: Report on the Legal Value of Computer Records; Model Law on Electronic Funds Transfer, Model Law on Electronic Commerce (hereinafter referred to as Model Law) and Implementation Guide of Model Law on Electronic Commerce; And the Uniform Rules on Electronic Signatures being drafted by UNCITRAL. These legal documents are a summary of the legislative experience of e-commerce in various countries in the world, which in turn guides the legal practice of e-commerce in various countries. In addition, the European Commission put forward the European e-commerce action plan in 1997, which established a framework for regulating European e-commerce activities. 1998 promulgated the directive on transparency mechanism of information society services. 1999 adopted a directive on establishing a legal framework for electronic signatures.
From the perspective of American countries. The Utah Digital Signature Act promulgated by 1995 is the first legal document to comprehensively establish the operation of e-commerce in the United States and even the world. At present, 45 States in the United States have enacted laws related to e-commerce. In addition, in July, the National Committee for the Unification of State Laws of the United States passed the Uniform Electronic Transactions Act, 1999, which was adopted by state legislation. In June, 2000, Clinton signed the International and Interstate Electronic Signature Act, which was unanimously passed by both houses of Congress, marking the United States' e-commerce legislation on the road of federal unification. Canada, Argentina and other countries have enacted e-commerce laws.
As far as Europe is concerned, the Russian Federation is also one of the first countries in the world to enact e-commerce laws. 1995 1 month, the information law of the Russian Federation was promulgated to regulate the generation, storage, processing and acquisition of all electronic information. This law gives legal effect to electronic information files authenticated by electronic signatures, transmitted and stored through automatic information and communication systems. It also stipulates that the authentication right of electronic signature must be licensed. In line with this law, the Federal Market Security Committee of the country also issued the Interim Requirements for Information Storage Standards in 1997, which specifically stipulated the security standards for transactions. 1In August 1997, Germany promulgated the Law on Information and Communication Services, including the Law on the Use of Communication Services, the Law on the Protection of Personal Information of Communication Services, the Law on Electronic Signature, the Amendment to the Criminal Code, the Amendment to the Administrative Violation, the Amendment to the Prohibition of Spreading Immoral Publications to Minors, the Amendment to the Copyright Law and the Amendment to the Price Marking Law. It can be said that Germany has adjusted the whole legal system in order to implement its e-commerce law. Italy promulgated the Italian digital signature law in 1997. In order to implement this law, 1998 and 1999 respectively promulgated presidential decrees and formulated the Technical Rules for Digital Signature. From the perspective of Asia, many countries around China have enacted e-commerce laws. As early as the mid-1990s, Malaysia put forward a plan to build an "information corridor" and promulgated the Digital Signature Law at 1997. It can be said that this is the earliest e-commerce legislation in Asia. In the same year, South Korea also formulated a comprehensive basic law on e-commerce. Then in 1998, Singapore formally formulated and promulgated the Singapore Electronic Transactions Law, and in 1999, formulated the Singapore Electronic Transactions (Certification Bodies) Rules and the Singapore Certification Bodies Security Policy. India promulgated the Electronic Commerce Support Act on 1998. The Philippines also enacted the Electronic Commerce Law in 2000. Japan's electronic signature and authentication law will take effect in April 2006. Thailand's e-commerce law is also being formulated.
In order to adapt to the development of e-commerce, China has also taken some legal measures. For example, the newly promulgated "Contract Law" adds "data message" as a new form of electronic transaction to the formal terms of the contract. Another example is China's "Regulations on the Implementation of the Patent Law", which stipulates that patent applications can be filed by electronic communication to adapt to international trends. However, compared with the demand of e-commerce practice and the legislation of developed countries in the world, the progress of e-commerce legislation in China needs to be accelerated. Judging from the special legislation of e-commerce, there is no formal legal document in China except the NPC deputies' motion. Fortunately, the drafting of e-commerce local legislation in Guangdong, Shanghai, Hainan and other places is being actively carried out, and the upcoming local regulations may provide some experience for national legislation. In addition, the China SAR promulgated the Electronic Transactions Ordinance on June 5438+ 10, 2000. China Taiwan Province Province drafted the Regulations on Electronic Signature from 65438 to 0999, which passed the first review in March 2000.
According to incomplete statistics, at least 40 countries and regions in the world have formulated and promulgated substantial e-commerce laws. More countries and regions are brewing, drafting and reviewing e-commerce laws.
Secondly, from the research of e-commerce law. Since the 1980s, legal scholars from many countries in the world began to discuss the e-commerce law, although it was not called e-commerce law at that time. According to the information I have, in the early 1980s, a seminar called "Logic, Information Technology and Law" was held in Florence, Italy. The conference published two selected papers, which focused on the validity of computer records closely related to e-commerce law. There are at least 30 kinds of international academic journals that specialize in publishing research articles on e-commerce law. For example, John in America. Marshall Journal of Computer and Information Law (john marshall Journal of Computer and Law; Information law), European communication law, EDI law review, etc. , are academic forums dedicated to publishing papers on e-commerce law. At present, academic conferences and periodicals on e-commerce law are emerging one after another all over the world. As for the monographs and columns on e-commerce law opened by comprehensive law magazines, or the papers published on e-commerce law, there are countless more.
Thirdly, some cases have been accumulated in the judicial practice of e-commerce law. For example, in its official publication Law Weekly, the United States Department of the Interior has set up a special e-commerce law project, which includes federal and state e-commerce legal documents and case reports. In addition, it is worth mentioning that the number of websites devoted to introducing and discussing e-commerce and its legal issues on the Internet has reached a dizzying level. Electronic network not only gave birth to e-commerce law, but also promoted the research of e-commerce law.
In short, the existence and rapid development of e-commerce law is an indisputable fact. This global legislative phenomenon fully embodies the important role of e-commerce law in adjusting e-commerce activities between countries and around the world. At the same time, it also provides an unavoidable research topic for the legal profession.
2. Brief introduction of e-commerce law.
Judging from the legal documents and works at home and abroad that the author has dabbled in, no one has defined the concept of e-commerce law at present. Due to the rapid development of e-commerce activities, people need a process to understand it, and everyone has a different perspective. Therefore, it is difficult to imagine a generally accepted definition, at least when the current e-commerce law is still in its infancy, this possibility is very small. I have no intention to create a perfect definition of e-commerce law, but I have to make a relatively reasonable explanation out of writing needs.
(1) generalized e-commerce law
E-commerce law in a broad sense corresponds to the concept of e-commerce in a broad sense, including all legal norms regulating commercial activities by means of data telecommunications. Its content is extremely rich, which can at least be divided into two categories: adjusting e-commerce as a transaction form and adjusting electronic information as a transaction content. The former is the United Nations Model Law on Electronic Commerce (also known as narrow electronic commerce law), and the latter is numerous, such as the United Nations International Trade Commission Electronic Fund Transmission Law and the United States Uniform Computer Information Transaction Law. It should be pointed out that the relationship between the formal norms of e-commerce and the substantive norms with electronic information as the content is just like the administrative procedure law and administrative law. Formal norms can be formulated by a code or a law, while substantive norms can not be covered by a unified code or a separate law because of their wide coverage, and can only appear in the form of separate laws, regulations and even precedents, and may also be integrated into the norms of other departmental laws. Although the broad concept of e-commerce law is sometimes popular and convenient in application, especially when it comes to calling e-commerce law as a legal group, it seems easy to use. However, it is difficult to use it in concrete legislation and judicature. On the one hand, it is impossible to formulate an e-commerce law with such a wide range of adjustment objects, and at the same time, it is impossible to apply such a broad e-commerce law to a specific case.
(2) narrow e-commerce law
If we analyze the contents of legal documents named after "Electronic Commerce Law" or "Electronic Transaction Law" in the United Nations and other countries in the world, it is obvious that the problems they solve focus on the confirmation of the validity of computer network communication records and electronic signatures, the selection of electronic authentication technology and its security standards, the establishment of certification bodies and their rights and obligations. These are essentially the norms to solve the operation flow of e-commerce transactions. Therefore, from the point of view of facilitating legislation and research, it is reasonable to think that e-commerce law is a normative system for adjusting commercial relations caused by transaction forms formed by data telecommunications. It should be pointed out that although this paper mainly discusses this issue from the perspective of narrow e-commerce law, when it comes to e-commerce law, it generally refers to the concept in this sense. However, due to the broad sense and narrow sense of e-commerce law, when we encounter the term e-commerce law, we should pay attention to distinguish its context, understanding and use, and we cannot generalize it.
Second, the adjustment object and scope of e-commerce law
(1) adjustment object
Any legal department or legal field takes certain social relations as its adjustment object. As a new commercial legal system, e-commerce law is no exception. When oral and traditional writing are the main means of commercial transactions, the problem of transaction form has not become an independent adjustment object of commercial law, but is solved by the evidence system in procedural law, and these norms are only applicable when the parties have disputes over such issues and cannot handle them themselves and submit them to the court or arbitration institution. Because under the oral and traditional written conditions, the problem of transaction form is relatively simple, and the rights and obligations arising from the choice of transaction form between the parties are clear at a glance, and no special law is needed to adjust it. However, with the development of electronic computing and communication technology and its wide commercial application, the forms of commercial transactions have become more and more diverse and complex, and have reached the point where they must be adjusted by special legal norms. The reason why private law adjusts this commercial relationship caused by the use of data telecommunications is because the use of modern commercial transaction means has formed an inseparable part of most important commercial relationships. Whether it is securities trading, bill circulation, company operation, or banking, insurance, investment and other industries, data, telecommunications and other means can not be separated from the legal relationship of entity transactions. Especially with the wide application of the Internet, even if there is no special e-commerce law to regulate it, it may seriously hinder the development of commercial relations. In other words, the formal relationship of electronic transactions has become an important social relationship that the law must adjust. This is one of the important reasons for the emergence of e-commerce law.
Usually, when describing the concept of a legal department or field, people will inevitably mention its specific object. In fact, when explaining the basic meaning of e-commerce law, it has already involved the adjustment object of e-commerce law. This paper holds that e-commerce law is a normative system to adjust commercial relations with transaction forms as transaction means. That is to say, the commercial relationship whose content is the transaction form formed by data and telecommunications is the adjustment object of e-commerce law.
Data telecommunications was originally a technical term in computer communication, which is simply the general term of electronic information, but it has a specific meaning in e-commerce law. The definition of (data message) given by UNCITRAL in the Model Law is: "For the purposes of this Law, (a) data telecommunication means information generated, received or stored by electronic means, optical means or similar means, including but not limited to electronic data interchange, e-mail, telegram, telex or fax". When data telecommunication is used as a means of transaction, that is, paperless form, it should generally be adjusted by e-commerce law.
E-commerce is a concept with rich connotation and extensive extension. The task of narrow e-commerce law is to establish a legal platform for the smooth operation of electronic communication technology, that is, to legally create an environment for the application of various communication technologies in commercial transactions. In essence, it is the legal realization of the spirit of electronic network.
Broadly speaking, both electronic fund transmission and electronic securities trading belong to e-commerce relations, but these specific business transaction relations are not only regulated by narrow e-commerce law, but also within the scope of regulation by securities law and financial law. Because the data telecommunication in this relationship is not only used as a means of transaction, but also as a transaction object such as securities and currency, that is, as a transaction content.
E-commerce law is the development of commercial law in computing and communication environment, and it is a new manifestation of commercial law. It must take the commercial relationship as its adjustment object, but this commercial relationship has the following characteristics:
First, it is a business relationship with data and telecommunications as trading means. In other words, all commercial relations conducted in oral or traditional written form are not within the scope of adjustment of e-commerce law.
Second, commercial relations are caused by trading means, and generally do not directly involve substantive terms of trading means. Because the means of transaction is only the ideographic part of the composition of the transaction behavior, not the meaning itself in the legal behavior, nor is it the subject matter of the transaction.
Third, commercial relations do not directly take the object of transaction as their rights and obligations, but take the form of transaction as their content, that is, the rights and obligations arising from the application of the form of transaction. For example, recognition of electronic signatures, responsibility for keeping private keys, etc. , all belong to this category.
It should be noted that any classification is relative. When data telecommunication is both a transaction means and a transaction content, it is inaccurate or even embarrassing to determine the adjustment object of this narrow e-commerce law. At this point, the objects and means in e-commerce transactions seem to be integrated in data telecommunications. Even in this special case, the concept of narrow e-commerce law is still useful, because the standard method of data telecommunications as a transaction means is different from the standard system of electronic information as a transaction object.
2, the scope of application of e-commerce law
(1) From the perspective of trading means,
The scope of application of e-commerce law is paperless business activities conducted through data and telecommunications, in other words, business activities conducted only in oral or traditional written form are not within the scope of adjustment of e-commerce law. With the development and innovation of electronic communication technology and the diversified development of e-commerce activities, the scope of application of e-commerce law will be wider and wider.
Article 1 of the UNCITRAL Model Law states: "This Law is applicable to any type of information in the form of data messages used in commercial activities". In his Guide to the Implementation of the Model Law, he explained that e-commerce is a "paperless" form of trade, that is, e-commerce law applies to "paperless" trade relations. However, paperless is relative to paper-based trading activities. If e-commerce activities are judged by the presence or absence of paper, then oral transactions are paperless. Although this division method is vivid and clear, it is not rigorous enough. It is more appropriate to use data telecommunications to explain the scope of application of e-commerce law. Article 3 (a) of the Uniform Electronic Transactions Act of the United States stipulates: "Article 3 of the Korean Basic Law on Electronic Commerce stipulates:" This Law is applicable to all transactions or transactions conducted using electronic information ". Data telecommunications is just an upper concept of electronic information, electronic records and electronic signatures.
(2) From the perspective of actors.
Generally speaking, e-commerce law, as a branch of commercial law, should adjust the trading relationship between the parties with equal subjects. Both the e-commerce relationship between businessmen (commercial subjects) and the e-commerce relationship between businessmen and non-businessmen (usually consumers) should belong to the scope of application of e-commerce law. At present, the e-commerce relationship between businessmen is relatively common, because such subjects occupy e-commerce resources earlier and more. Therefore, the related "EDI agreement" and so on are tailored for them. However, with the increasing popularity of e-commerce applications, there will be a large number of e-commerce transactions between businessmen and non-businessmen. In view of this relationship, e-commerce law may take into account consumer protection issues. In fact, the EU and South Korea have paid full attention to this issue in their e-commerce laws.
It is worth considering whether the business management activities between businessmen and the government belong to the scope of application of e-commerce law. The e-commerce laws of many States in the United States have included this part of the relationship in the scope of e-commerce laws, while the model rules of the United Nations International Trade Commission obviously exclude such activities from the scope of e-commerce laws. From the perspective of commodity trading law, these business activities are not typical e-commerce transactions and should be adjusted under other legal departments. Of course, this does not mean that it cannot be stipulated in the same e-commerce law. On the contrary, for the convenience of legislation and law enforcement, it is very likely that two different types of legal norms will be stipulated in the same law, which is not uncommon in modern legislation. However, in theory, the nature of the two should be different.
Third, the characteristics of e-commerce law
E-commerce law is essentially the merchant law of 2 1 century, which has the following two basic characteristics: first, it is based on the trade practices of businessmen; Secondly, it has the natural characteristics of globalization across any national boundaries and regions. These two points are precisely the characteristics of the Merchant Law.
As far as the trade convention of e-commerce law is concerned, it refers to the usual law, and it is impossible to stipulate very specific codes of conduct for it. Because the business standards in the field of e-commerce will be constantly updated and upgraded with the development of communication computing technology, it is feasible to formulate only too rigid terms, which can only hinder its development and take the common practices in the industry as the norm of its behavior. Civil law may set a standard for decades or even hundreds of years for a person's capacity for behavior, such as the age standard for a person with full capacity for behavior, and that's it. The company law may stipulate that the conditions for the establishment of a certain type of company will remain unchanged for several years or even more than ten years. Take the registered capital in China's company law as an example, which is a ten-year consistent system. And these precise and long-term solidified norms are unimaginable in e-commerce law. Moore's theorem tells people that the development of computing technology is that its performance will double and its price will be halved every 18 months. Compared with those "rigid methods", e-commerce law should be "flexible", which is a constantly updated specification with the development of communication computing technology and e-commerce business. Of course, in the contemporary and future commercial law industry standards, the industry rules of e-commerce should not be the only source of norms, and international and domestic legislatures should also review them, in which businessmen should be given some social responsibilities such as protecting consumers.
As far as the globalization of e-commerce law is concerned, no legal field is regulated like e-commerce, which is "unrestrained" and all artificial boundaries set by e-commerce are futile. Therefore, the formulation of e-commerce law must conform to this feature. In other words, the supervision of e-commerce must pave the way for its development and provide global solutions. The e-commerce law formulated by a country or region can only be regarded as "local area network", and the ideal "Internet" e-commerce law needs to be formed and popularized in the global "IP/TCP" legal system of e-commerce law. The model law formulated by the Joint International Trade Commission and the electronic signature rules being drafted are attempts in this direction.
As a new field of commercial law, in addition to the above characteristics, e-commerce law has some specific characteristics compared with other commercial legal systems, as follows:
1, programmed
As a transaction form law, e-commerce law is a procedural norm in substantive law, which mainly solves the formal problems of transactions and generally does not directly involve the specific contents of transactions. The form of electronic transaction refers to the specific electronic communication means used by the parties; The content of the transaction is the interests enjoyed by both parties to the transaction, which is manifested in certain rights and obligations. In e-commerce, the legal issues with data information as the transaction content (that is, the subject matter) are complex and diverse, and need to be adjusted by many different special legal norms, which is beyond the competence of e-commerce law. For example, in e-commerce transactions, data messages may represent not only money, but also copyrighted works and consulting information provided. Whether an electronic message constitutes an offer or an acceptance should be judged according to the standards of contract law; Whether it can constitute electronic money should be measured according to financial law; Whether it constitutes reputation damage should be defined by tort law. However, the e-commerce law does not require what the electronic information in the transaction represents. Therefore, e-commerce law is a procedural law in commercial transactions, which adjusts the rights and obligations between the parties arising from the use of transaction forms, that is, whether the relevant data telecommunications are effective; Whether the electronic signature is valid and conforms to the nature of the transaction; What qualifications do certification bodies have and what responsibilities should they bear in the issuance and management of certificates? The main function of these norms is to provide a "platform" for the development of e-commerce and transplant the legal value formed in the traditional paper environment into e-commerce. From the perspective of civil and commercial law, these e-commerce laws and regulations are all about solving the problem of commercial intention expression procedures, and do not directly involve the substantive rights and obligations of transactions. As for the content of its transaction, it is impossible to comprehensively regulate it with narrow e-commerce law, but it should be adjusted with corresponding laws. Take the Uniform Electronic Transaction Law of the United States as an example, the full text is only 2 1, which mainly stipulates the particularity of electronic records and electronic signatures, as well as the effectiveness, ownership and preservation of electronic contracts in the environment of e-commerce transactions. At the same time, the United States Uniform State Law Committee also promulgated a unified computer information transaction law, which focuses on the substantive content of electronic information transactions. This law is divided into nine parts, article 106, which comprehensively stipulates the transaction problem with computer information as the subject matter. It is simply an "electronic version" of the contract law. Compared with the two, the procedure of unified electronic transaction law is more prominent. In addition, judging from the Model Law of the United Nations Commission on International Trade Law and the Electronic Transactions Law of Singapore, the forms of transactions under the conditions of e-commerce are the main ones.
2. Technology
In e-commerce law, many legal norms are directly or indirectly evolved from technical norms. For example, in some countries, digital signatures generated by public key systems are defined as secure electronic signatures. As a result, the technical specification of public key is transformed into legal requirements, which has an extremely important impact on the transaction form and the exercise of rights and obligations between the parties. In addition, if the parties do not abide by the technical standards of network protocols, it is impossible to conduct e-commerce transactions in an open environment. Therefore, technical features are one of the important features of e-commerce law. If viewed from the background of the times, this is the legal reflection of the knowledge economy in 2 1 century. The coercive force of technical specifications stems from its objective regularity, which is the main source of contemporary natural law. The ideal empirical method can only accept it, but not violate it.
Step 3 make it public
From the principle of civil and commercial law, e-commerce law is a legal system about expressing meaning by means of data telecommunication, which has various forms and is still developing. Therefore, we must treat any technical means and information media with an open attitude and establish open norms so that all ideas and skills conducive to the development of e-commerce can be accommodated. At present, international organizations and countries widely use open clauses and functional equivalent clauses in e-commerce legislation, with the purpose of opening up all aspects of social resources and promoting the extensive development of science and technology and its social application. It is embodied in three aspects: the opening of the basic definition of e-commerce law, the opening of basic system and the opening of e-commerce legal structure.
4. Complexity
Compared with oral and traditional written forms, this feature exists. The complexity of e-commerce transaction relationship stems from the complexity and dependence of its technical means. It is manifested in that usually the parties must complete the trading activities with the assistance of a third party. For example, in the conclusion of the contract, Internet service providers are required to provide access services, and certification bodies provide digital certificates. Even in the non-networked, point-to-point telecom business environment, traders need to complete the transaction through telephone, telegraph and other transmission services. Perhaps some enterprises can abandon the transmission services of third parties and provide communication facilities for their own transactions, but this is likely to increase costs and run counter to commercial laws. In addition, the performance of online contracts may require the participation of third parties to assist in performance. For example, online payment often requires the network services of banks. This complicates the form of electronic transactions. In fact, every e-commerce transaction must be based on the existence of multiple legal relationships, which is not available in traditional oral or written conditions. It needs multi-directional legal adjustment and the application of multi-disciplinary knowledge.
In addition, if commercial legal norms are divided into behavior law and subject law according to the "binary" division method made by the usual commercial law works, then e-commerce law should belong to behavior law. But what it regulates is not the behavior directly related to the rights and obligations of the entity, but the formal behavior of the transaction, which is the procedural code of conduct in the substantive law.
Four, the basic principles of electronic commerce law
1, the principle of neutrality
The basic goal of e-commerce law boils down to establishing fair trading rules in e-commerce activities. This is the inevitable reflection of the transaction security principle of commercial law in e-commerce law. E-commerce is not only a new means of trading, but also a new industry. In the face of the temptation of unfathomable huge interests, it can be said that no enterprise is indifferent. All kinds of interest groups, technologies and stakeholders want to participate in it, display their talents and seek convenience in this incomparably broad stage. Its specific participants include hardware manufacturers, software developers, information providers, consumers, businesses and so on. but