Research On The Legal Issues Of Electronic Contract

Electronic contract, by internet carrier, is the new development tendency of traditional contact in information society, which totally changes the transaction models of whole society and brings huge convenience and speedy service to people."The reform of transaction model promotes the improvement of transaction rule. It is the Golden Rules for jurisprudence development history."As for electronic contract, although it plays the same role with traditional contract, it is now challenging the traditional contract legal theories fiercely. Based on predecessor's research, this thesis will analyze and discuss several legal issues concerning on electronic contract. The thesis can be divided into five chapters.Chapter I compares the differences between electronic contract and traditional contract. The main characters of electronic contracts can be defined as follows: 1) electronic forms.2) virtual 3) separation between parties 4)"electronic"indication. 5) beyond text 6) speedy delivery. Then, based on what has discussed chapter I indicate the several challenges which traditional contract rules encountered, i.e. offer, acceptance, effect, fulfilling the agreement, mediation in a dispute.Chapter II discusses the parties'capacity for signing contracts, which include such following issues: Recognization of the inchoate capacity of the parties, the legal status of electronic agent, what is the responsibility of the electronic agent for wrongful actions. Chapter II also criticizes the views that"denying'action capacity'in internet transaction". It points out to use technical methods to solve problems. Furthermore, in order to recognize the parties'capacity for signing contract, Chapter II advises to build register member system by ISP and create internet certification organizations by official authority. Concerning the legal status of electronic agent, the thesis holds the opinion that electronic agent is not independent. The effect of its expression belongs to its principal. Concerning the responsibility which caused by the agent, it should be assumed by principal, but the ultimate responsibility will be assumed by the parties who caused such mistakes (i.e. designer, server, supplier or agents themselves).Chapter III analyzes the problems when the offer or acceptance of electronic contract has to accommodate traditional"express meaning"rules. Concerning the time when electronic offer and acceptance effect, the thesis support the opinion that, in common circumstances, only if the party know the meaning that the other party expressed, or offer has been arrived the area where receiver controlled, it will be viewed as"receive". Concerning the confirmation about site where the acceptance effect, the thesis believe that current law should follow which published by UN: the principal place of business of receiver should be the place where acceptance effect, or if no principal place of business, residence should be the place where acceptance effect, or if parties have other agreement, follow their agreement. Concerning withdrawing offer or acceptance, the thesis approves that electronic contract also can be applied to the traditional contract principles, which means that electronic offer or acceptance also can be withdraw. Meanwhile, the thesis can not agree the opinions of some scholars. They suggest that costumers should be vested with privilege for withdrawing acceptance. This thesis believes it will destroy the equal status of transaction parties and further damage the current market. Chapter IV explore the online fulfilling issues for electronic contract. To start, the thesis will introduce the normal payments, i.e. credit card, electronic check, electronic cash. Then it focus on the issues that how to confirm or regulate the fulfilling time, location or responsibilities when paying online. Chapter V deal with mediation disputes relating to electronic contracts.In this chapter, firstly, I conclude the characteristics of electronic evidence: i.e. invisible, easily damaged, compound, high technology. Secondly, the thesis suggests that China should verify electronic evidence as a new kind of evidence legally. This thesis also points out the difficulties when applying the traditional jurisdiction principles to electronic contract disputes. By comparing the different theories concerning jurisdiction, the thesis suggests that it is possible to use IP location as the administration place. Thirdly, it agrees with that"meaning freely"principle and"most related principle"are the most important principles for selecting laws applied to. The thesis believes that"most related principle"is the best methods for selecting"connection point". Finally, this thesis recommends online arbitration for mediating disputes. Meanwhile it focuses on online negotiation, online mediation and online arbitration in this chapter.