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Collision And Docking Of The Legal Tradition And The Electronic Age

Posted on:2004-08-10Degree:MasterType:Thesis
Country:ChinaCandidate:Y ZhangFull Text:PDF
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The world is more and more involved into an integrated network, which enhances the process of computerization of commercial contract. However, on the other hand, it also brings about challenges to traditional contract legal system. Ever since 1990s, the international community and all the individual countries have been actively seeking the way of combining traditional laws and electronic age together. Only after several years, legislative activities have already spread throughout the world. At least over 40 international organizations, countries and districts have made and promulgated legal regulations to restrict electronic commerce activities and forms many legal documents concerning electronic contract, all of which consider spontaneously about coordination in order to reduce conflicts as much as possible. The peculiarity of global legislation about electronic commerce is embodied in the aspects of quickness and compatibility.Compared with other countries, China starts quite late in electronic commerce. Legal regulations concerning electronic contract are not only very few, But too principled, lacking operational flexibility. The rapid development of electronic commerce obliges us to join other countries in regulating electronic commerce contract activities and ensuring the security of electronic business. Only by doing so can we reduce the blockage of the out-of-tune legal regulations towards electronic commerce. accelerate the combination between traditional laws and network age, and establish legal regulations about electronic commerce which accord with the traditional ones.Compared with traditional contract, electronic contract is the same in essence while different in forms. Electronic contract equals real contract by using transference and exchanges of electronic data in the suppositional exchange market-Internet. AH contacts which use computer network to transfer data messages to conduct a contract, no matter using EDI. E-mail or web, can be called electronic contracts. Besides, contracts made through the Internet and contracts whose process contains sending message through the Internet should also be applied to the legal regulations of electronic contract.Validity is the prime question of making an electronic contract. The "ElectronicCommerce demonstrative Law" made by the UN suggests using the principle of "functional equivalent" to vest electronic contract with the same legal effect and status as traditional contract. In other words, it is a question whether electronic contract can serve as a proof and record as paper contract does. If so, electronic contract then has the written-form validity. This principle settles the problem of validity of electronic contract very well. "Contract Law" of China affirms electronic contract to be written contract by magnifying the meaning of written contract. By doing so, however, it actually changes functional equivalent into forming equivalent.When the form of contracts changes from oral and written to data files, traditional signature can no longer prove the content of a contract. Correspondingly, electronic signature replaces it in order to accord with electronic contract. There are 3 ways for legal options, namely, technical special-designation, technical non-special-designation and technical neutrality. Technical neutrality is favorable to the development of the network industry and network commerce. It uses the principle of functional equivalent, that is, if an electronic signature has the same function of proof as a traditional one, it has the same validity. But at present, technical neutrality intensifies the signature technique widely accepted by a moderate degree and thus more accord with the needs in reality. Therefore, It has a bright prospect in application. The feature of technical neutrality is that it broadens the ways to realize electronic signature in order to contain all kinds of technical means and leaves legal space. On the other hand, it also supports the mature and widely accepted techniques, e.g. non-symmetric public encrypti...
Keywords/Search Tags:Electronic Commerce Law, Electronic Contract, functional equivalent, Electronic Signature, Electronic Certification, Electronic Agent, Provisions, Commitment, forming provisions.
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