Research On Electronic Contracting Rules

Nowadays,the rapid development of electronic transactions has substantially changed the traditional market transaction mode.From the perspective of transaction rules,electronic transactions using the Internet as a medium need new transaction rules,which will inevitably bring challenges to the traditional transaction rules,the most important of which is embodied in the field of contract law.As the preferred form of electronic transactions,there are many differences between electronic contracts and traditional contracts,and many new legal issues are emerging,especially in contract conclusion.Taking electronic information exchange as a contracting method brings revolutionary impact to the traditional contract-making field and fundamentally breaks people's understanding of the existing contract-making.Because electronic communication is based on digital technology and network technology and has the characteristics of paperless and electronic,many links of electronic contract-making are essentially different from traditional paper-based contract-making.If the traditional contract-making rules continue to be applied to adjust electronic contract-making,It is inevitable that there will be an embarrassing situation of tight constraints.Therefore,it is necessary to make adjustments to the relevant legal system with the regulation of contract conclusion as the core.Therefore,this paper chooses electronic contract rules as the research object in order to make a modest contribution to the systematic construction of electronic contract rules.This article takes electronic contract rules as the starting point and starting point,adopts research methods such as normative analysis,legal interpretation and comparative analysis,adheres to the problem orientation,follows the logical thinking of systematic exploration,and is based on the induction of electronic contract rules scattered in different fields.It attempts to achieve the purpose of adjusting,perfecting and improving electronic contract rules through systematic integration and comparative analysis of relevant rules.The structure of this article includes introduction,body and conclusion.The body is divided into five chapters.The introduction part raises questions from the basic theory of electronic contracts,and then clarifies how to create rules for electronic contracts from the system level.The introduction discusses the core and basic issues of the electronic contracting system.The purpose of the discussion is to further clarify the important value of this topic in contemporary legal theory research.The five chapters of the text take the electronic contracting rules as clues,and examine and sort out the electronic contracting rules from the following aspects: the electronic contracting meaning expression rules,the electronic contracting subject identification rules,the conventional modes of electronic contracting,the electronic meaning expression error rules,and the electronic format clause contracting rules,etc.In the introduction and comparative analysis,the thesis of this article is put forward that the electronic contract contracting rules should be designed with the ideas of adjustment,perfection,and improvement.The first chapter of this paper focuses on the discussion of electronic contract meaning expression,focusing on the formal rules of electronic contract meaning expression and the original rules of electronic contract meaning expression.The rules on the form of electronic expression of will,because they are directly related to the validity of electronic contracts,have aroused great concern in various countries.They have tried every means to treat electronic expression of will as a written form in order to eliminate the legal obstacles to electronic transactions.China's current law has also adopted certain legislative techniques to make electronic expression of will fall into the category of written form.However,the unique characteristics of paperless and electronic?Electronic meaning expression determine that electronic meaning expression is in fact difficult to be covered by traditional written form.This paper makes an in-depth analysis on whether electronic meaning expression is written form or not from the perspective of necessity,and proposes that future contract legislation should further stipulate electronic meaning expression form from the perspective of coordinating the unification of various rules.Based on the paperless feature of electronic meaning expression and the opportunity of "Civil Procedure Law" to increase the types of electronic data evidence,the electronic data form of electronic meaning expression should be clarified from the substantive law level to facilitate coordination and cooperation within the legal system.The original rule of electronic meaning expression is an inevitable requirement for the written form of electronic meaning expression,because the electronic text received by the addressee is not unique after the electronic information of data is sent out through electronic communication.The electronic text received is always a copy of the original,while the purpose of electronic meaning expression forming the original is to apply the evidence type of documentary evidence to legal proceedings.Based on the adjustment of the current evidence type,it is necessary to improve the original rule of electronic meaning expression by formulating rules for electronic representation of original meaningThe second chapter of this article systematically discusses the qualification confirmation system of electronic contracting parties.Based on the impact and challenge of network technology on the essence of legal parties,this chapter answers the deep-seated reasons why electronic contracting parties need identification rules,and focuses on the judgment of minors' electronic contracting ability and the legal status of electronic agents.In-depth analysis is made on the two main methods of identification of contracting parties,namely electronic signature and electronic authentication.As for the issue of minors' electronic contracting ability,the author puts forward some adjustment ideas in the way of respect and breakthrough.The specific adjustment ideas include: first,to further broaden the scope of application of minors' electronic contracting ability;second,set up a daily living clause system;Third,for electronic contracts concluded by minors through electronic fraud,the validity of the contract should be determined according to the specific form of the electronic contract,and cannot be generalized.Through reviewing different viewpoints on the legal status of electronic agents,it is pointed out that the theory of electronic agents is reasonable with the rapid development of artificial intelligence technology.In the process of combing the historical context of the development of the contracting body system,the ideological root of giving legal status to electronic agents is explored,thus providing the theoretical basis for electronic agents to enter the law as subjects.On this basis,suggestions are put forward on the legislative choice of China's electronic agent system.The contract of electronic agent is brought into the scope of adjustment in the Contract Law,and the concept of electronic agent is defined from the legislative level,the conditions for electronic agent to make offer and acceptance are clearly stipulated,and the attribution rules for the consequences of electronic agent's behavior are established.The content of the third chapter of this article is one of the research focuses.This chapter mainly takes electronic offer and electronic acceptance as clues to discuss the electronic contracting rules under the conventional contracting mode.Because electronic offer and electronic acceptance are obviously technical,they are different from the traditional offer and acceptance rules and need to be interpreted completely in theory so as to create new contracting rules through the improvement of the traditional rules.This article holds that the core problem to be solved by the general rules of electronic contracting is the determination of the effectiveness of electronic offer and electronic acceptance.Therefore,this chapter discusses the determination of the effectiveness of electronic offer and electronic acceptance.The main answer is four questions: first,how to identify electronic offers;Second,how to determine the effective time of electronic offer and electronic acceptance;Third,whether electronic offer and electronic acceptance can be withdrawn;The fourth is how to judge that both parties have reached an agreement.The research on the above four issues constitutes the overall content of this chapter.In response to the first question,this paper holds that the criteria set forth in the "Contract Law" for the purpose of concluding a contract should be adhered to,the subjective intention of the information publisher should be comprehensively considered,and whether the information of goods or services conforms to the offer conditions stipulated by law should be evaluated according to the actual situation of information publication.In view of the second problem,this paper firstly interprets and interprets the traditional legal norms,and gets enlightenment from the comparative study with the legislation of relevant international organizations.This paper thinks that the effective time problem should be solved by specifying the time when data messages are sent and arrived.At the same time,based on the consideration of fair risk allocation,a supplementary rule can be set up with retrieval time as the effective time to solve the problem that electronic offer and electronic acceptance do not enter the designated system.In response to the third question,Through comprehensive analysis and comment on different viewpoints,this paper holds that in the civil rights system,why legislators empower the parties is based on the consideration of legal value and is the result of a choice of legal policies.Due to objective and actual conditions,rights cannot be driven temporarily or have difficulties in driving.It has never been a factor for the creation of rights and should not be a reason for not empowering the contracting parties.In this sense,revocation or withdrawal of the electronic expression of intent is a right conferred on the sender by law.According to the rule of empowerment,others are not allowed to deprive it at will.As for the fact that rights cannot be exercised temporarily or are difficult to exercise due to objective and actual conditions,it should not be a factor to consider in creating rights or a reason not to empower the contracting parties.In response to the fourth question,this paper holds that the judgment rules of consensual agreement should be interpreted around the scope boundary of consensual content.The specific criteria are: first,to reach agreement on the necessary terms of the contract;Second,the parties have an agreement on the necessary terms and conditions and interpret the contents of the agreement.Third,the offer shall not make any material changes to the contents of the offer.In the fourth chapter of this paper,the author studies the error rules of the electronic expression of intent.The normative purpose of the error system of electronic expression of intent is to solve the problem of under what circumstances the external expression can be attributed to the ideograph.Since there is no error rule of expression of intent in our country,this paper starts with judicial practice,defines the concept and coverage of electronic error,classifies the types of electronic error,examines the legislation of the United States and international organizations,and puts forward suggestions on improving the error rules of electronic agreement in our country.Through the classification of electronic contracting error types and the legislative investigation of various countries and international organizations,this paper thinks that the electronic error rules in China should be perfected from the following four aspects: first,the concept and scope of electronic error should be defined from the legislative level;Second,rules should be established specifically for human electronic errors.Third,we should further clarify the error rules of automatic information system on the basis of the existing legal norms.Fourth,provide remedies for electronic errors.The fifth chapter of this article is also the focus of the article.This chapter takes electronic format clause contracting as the approach and systematically discusses the non-individual negotiation rules of electronic contracting.This chapter focuses on two issues: one is the issue of agreement in electronic format terms,that is,how to ensure the sufficiency and authenticity of agreement;the second is how to break through the dilemma of electronic format clauses.As for the first question,this paper holds that online consumers should be provided with more reasonable opportunities to understand and understand the terms and conditions,and at the same time,e-commerce operators should be required to explain the terms and conditions,so as to help consumers make a choice of contracting on the basis of clarifying the meaning of the terms and conditions and improve the degree of agreement.As for the second question,it should be solved through a series of measures,such as further enhancing the significance of the content of standard clauses,giving online consumers the right to withdraw,establishing a cooling-off period system and setting limited reading obligations.The sixth chapter of this article is the conclusion part of the article.Based on the systematization of electronic contracting rules,it is found that the essential attribute of electronic contracting is different from traditional contracting,which is the premise of integrating electronic contracting rules.Therefore,this chapter explains the conclusion of this article with the topic of "the influence of electronic contracting on the current contracting system".As in the process of electronic contracting,the communication between electronic contracting subjects is realized through the interaction of data messages.As a result,both contracting parties rely on the guidance of e-commerce trading platform for contracting activities and promote consumers' contracting with irrational impulse characteristics.Therefore,under such premise,the strategy of legal adjustment of e-contracting and e-contract relationship is likely to take place or has already taken place to a comprehensive governance path of coordinated adjustment of public and private laws.