Research On Civil Liability Of CA In The Electronic Signature

Certification Authority (CA) means a natural or legal person that issue certificate and may provide other services related to electronic signatures to safeguard the secure of electronic commerce. Electronic Certification means that CA, based on the encryption, by means of electronic signature, digital certificate etc, provides the service to the parties of electronic commerce to affirm the identity and confirm the truthfulness and completeness of transferred information. CA which is mainly responsible for issuing certificate, validating the identity of applicants, protecting the certificate repository, abolishing and ceasing the issued certification etc, shall be the key role of electronic certification system. With the enactment and promulgation of People's Republic Law on Electronic Signature, the electronic commerce and certification service market have made the relatively rapid progress in our country. Based on this, our country has started the relative legislation on CA. However, the author thinks the legislation system design in Measures on CA Administration is too rough, particularly in absence of detailed criteria to deal with the civil liability of CA. The roughness of legislation and lack of the direct contractual relationship between CA and relying party lead to the absence of pertinent regulations and traditional legal theory when CA is investigated for legal liability. From this perspective, through the introduction of CA, the analysis of the legal relationship between the CA and relying party, the classification of civil liability of CA further, the author strives for the full introduction and explanation of civil liability of CA and put forward the proposal for the improvement of legislation on CA. The thesis is conceived based on the aforesaid consideration.Though the thesis has established the relative integrated structure, the discussion has not reached the every aspect of the matter due to the limitation of the length of the thesis, since the emphasis is placed on the party of CA and the matters concerning the signatory party is seldom covered. The thesis researches the civil liability of CA through the analysis of legal relationship involving the certificate service and the existence of statutory and contractual obligation borne by CA. The thesis is consisted of four parts besides the introduction and epilogue.The first chapter presents the basic introduction of CA, discusses the relationship between electronic signature and CA, clarifies the definition of CA and classifies the CA. This Chapter mainly discusses the legal relationship involving the certificate service, including the legal relationship between CA and applicant, between CA and relying party.The second chapter fixes the relationship between CA and applicant as the contractual relationship firstly, makes the analysis on concluding parties of the certificate service contract and characters hereof and sums up the rights and obligations of CA and certificate users. The emphasis is placed on the analysis of potential legal risk which CA possibly faces, including the administrative, criminal and civil liability.The third chapter discourses upon the civil liability undertaken by CA to certificate users. The common occurrence of contractual breaching of CA is introduced at the beginning. The liability for contracting negligence, contractual breaching and violation of duty of pots-contract are detailed discussed in this chapter. Following this, the thesis discusses the contradiction of between the liability of tort and the liability of breach of contract. Further, through the analysis and discussion of theory of contributory for liability of contractual breach, the author concludes the principle of the supposed fault responsibility shall be applied when CA is investigated for liability of contractual breaching. The compensation scope and limitation out of and the plea maters in CA breaching contractual obligation are covered in the end.The fourth chapter mainly discourses upon civil liability borne by CA to relying party. Firstly, the author introduces and comments on the theory of contractual remedy of continental legal system and theory of negligent tort of Britain and American legal system. Since the author agrees that the theory of negligent tort shall be applied, the author further researches on the constitutional requirements of CA'S tort in accordance with the theory of four constitutional items and lists the common occurrence of torts of CA in the provision certificate service. The thesis draws the conclusion that the principle of the supposed fault responsibility shall be applied when CA is investigated for liability of torts. The object of compensation, liability limitation and the plea maters in CA breaching contractual obligation are covered. Finally, the author raises the suggestions and advices for the improvement of electronic commerce legislation.