Electronic Signature Certification Of Legal Accountability Mechanism

Electronic signature authentication plays a vital role in protecting the safety of online transactions, constructing social credibility as well as promoting the development of E-Commerce. Compared with the electronic signature which focuses on the technical aspects, Electronic authentication, from the aspect of organizional system, secures the authenticity, accuracy and integrity of the transactors' identity and the related information, provides a credit bridge to the transacted parties, and then makes the transaction complete smoothly, which finally makes E-Commerce flourish. However, as an emerging industry, it also has high risk. For one side, Certification Authority (short for CA) faces considerable possibilities of external attacks and internal operating fault, for another side, certificate clients and the relying parties, who are the related parties concerning to the Certificate, relying on the credibility of the Certificate, would suffer losses when they carry on the transactions because of the fault of CA and the third party. In the E-Commerce environment, all of the above losses would be to some extent quite big and uncontrollable.Great liability risk means that the law should pay much attention to the development of this industry, the developed countries and regions have formulated laws on the area of electronic signature and its authentication or E-Commerce, China has also promulgated The Electronic Signature Law and its matching method, The Electronic Authentication Service Management Approach, in 2004. These legal measures have improved the legal empty state in the field of electronic signature and its authentication. However, the current existing laws involves much content which focuses on the administrative and criminal provisions and meanwhile pays little attention to the civil ones, therefore it is not conducive to solve the problem of electronic certification liability risk of such industry. This thesis comes to give research on the above issue from civil perspectives, mainly analyzes the problems from the aspect of the legal relationship among all parties during the course of electronic signature authentication, rights and obligations, the nature of the liability, and how to bear the liability. Finally, some proposals will be put forward to the improvement of legal liability bearing system of electronic signature authentication in our country.The content of the thesis covers the following six parts.The first part gives a simple introduction of the legal problems that electronic signature and its authentication result in. Starting with the origin of electronic signature, the author describes its function to the development of E-Commerce and then brings forward the existing problem lying in the electronic signature, in that the authenticity of the users can not be proved according to its own, so it is necessary to make certification through the third-party credit. Comparing electronic signature with electronic authentication, the author analyzes the function of electronic authentication so as to demonstrate its necessity to the development of E-Commerce. Next in the remaining of this part, from the aspects of technology, management and law, the author analyzes the existing risk of electronic signature authentication and its impact on CA, therefore the legal theme which should been resolved in this thesis, that is how to construct a reasonable legal liability bearing system in the field of electronic signature authentication comes into being.The second part analyzes the legal relationship among all parties during the course of electronic signature authentication. First, on this basis of redefining the connotation and denotation of the relying party, the author analyzes the legal relationship among all parties during the course of electronic signature authentication. From civil perspectives, the legal relationship is defined as a credit service based on the contractual relationship between CA and the certificate clients, a legal trust interest relationship between CA and the relying party, and a potential or direct contractual relationship between the certificate clients and the relying party.The third part gives a detailed analysis to the rights and obligations of all parties during the course of electronic signature authentication. Combining the provisions of our country's The Electronic Signature Law with relevant legislation in other countries or regions as well as the related research in the academic sector, the author analyzes the rights and obligations of all parties during the course of electronic signature authentication, especially CA. The fourth part, also one of the key points of the thesis, analyzes the legal liability bearing system during the course of electronic signature authentication. The liability of CA to certificate clients is defined as contractual liability but also sometimes tort liability under certain circumstances. When focusing on analyzing the contractual liability, the author divides the liability into three levels according to the different contract stages. The liability of CA to the relying party is defined as tort liability, to which the author gives a detailed analysis from the four constitutive requirements. The liability of employees is also analyzed according to the general theory of infringement. And in the next, the author demonstrates the viewpoint that principles of fault liability and burden of proof in reverse should be applied to the CA, that is to say fault liability of presumption is adopted as a reasonable of distribution of the burden of proof.The fifth part, another key point of the thesis, analyzes the limitation and release of the liability of CA. First the author analyses its necessity, and then discusses the limitation of the liability of CA from six aspects of system design, finally four cases of the release of the liability are made.The sixth part, also the last part, puts forward some proposals to the improvement of legal liability bearing system of electronic signature authentication in our country. On the basis of analyzing the status quo, significance as well as existing problems of the legislation of electronic signature certification in our country and learning from the relevant legislative experience at home and abroad, the author puts forward a four-point proposal on the legal liability bearing system.