Study On The Legal Barriers And The Countermeasures Of Electronic Contracts Application In China

With the maturity of modern information technology, E-commerce is taking more and more portion in the field of countries'commerce. However, it brings not only opportunities, but also challenges. The traditional law system, facing the commerce revolution as the result of the technology development, is becoming out of date, which causes new legal problems. Thanks to the wide usage of E-contract, intention is expressed in the form of E-record rather than that of oral and written. Such changes are challenging the principle of traditional commerce law theory. The lag of law in force in contrast with the blossom of E-commerce baffles the enforcement and promotion of E-contract. It is a problem how law-makers face the challenges and eliminate the legal obstacles.The paper starts with E-contract, the essential element of E-commerce, then the author concludes and analyses the main legal problems of the legal contract enforcement in China, trying to find the solution on the basis of the traditional contract theory and law in force. The legal obstacles are categorized into three main problems in this paper.The first problem is about the conclusion of E-contract. Due to the electronic communication, the traditional theory of offer and acceptance can not be suitable for the E-contract, especially for ascertaining where and when the E-contract is concluded. Compared with other countries'codices, this paper tries to figure out the time and the place of the E-contract conclusion, and discuses the cancel and recession of the offer and acceptance in the E-contract conclusion.The second problem is about the validity of E-contract. The modern information technology makes it possible for the contract to be concluded virtually, and brings the difficulty to find the real person involved in the transaction. This paper explains the common rule to identify the contracting parties, and probes the validity of the E-contract concluded by the minor or the electronic agent. On the other side, there are rather a lot standard contracts in E-contracts, whose validity are controversial. This paper also discusses about this issue.The third problem is about the effect of E-contract as evidence. The requirement of the contract formation in the traditional law, is usually based on the written form. It is the key-point to promote the E-contract that E-contract satisfies the evidence rule and achieves the same legal position as the written contract. This paper focuses on the evidence function of E-contract, trying to work out the common evidence rule of E-contract by means of the functional-equivalent principle introduced by UN.In the last part, this paper puts forward the advice of how to improve our legal system of E-contract with the consideration of the international and domestic law.