Research On Legal Characteristics Of Electronic Contract Conclusion

With the rapid development of the Internet industry and information technology, e-commerce is making a great development and tens of thousands of electronic contracts are concluded in the process of e-commerce. Electronic contract, the full name of which is e-commerce contract, is an agreement of the rights and obligations on both parties concluded by means of data messages. Electronic contract, which serve as an record of the civil rights and obligations in the process of electronic transaction, is playing a crucial role in electronic transactions and the key factor of whether e-commerce continues to flourish. The first problem to be solved of Electronic contracts is the problem of electronic contracts conclusion. Where there is no successful electronic conclusion, there will not have the effectiveness of the contracts and would also not have a rapid e-commerce development. Electronic contracts, which still remain consistent with the traditional contracts, have their own unique characteristics and rules comparing with the traditional contracts. These problems caused by the unique nature of Electronic contracts have brought great challenges to traditional laws and regulations which they have never met before or even imagine. At present, China’s most valuable laws relevant to electronic contracts conclusion are the "Contract Law" and "Electronic Signature Law". While only a few of the articles are relevant to electronic contracts and most of them are fragmented and separated relatively, strong principled but poor reality operability. Some of the basic issues are still in a vacuum.Therefore, to establish a separated and dedicated "Electronic Contract Law" and other relevant supporting laws with Chinese characteristics is in urgent. In this paper, we firstly analyzed the general theory of electronic contracts conclusion. Electronic contract is a form of contract and they are essentially the same, which means they are both contracts. The difference of them is reflected in the form of expression. As the Electronic contract is concluded by means of Data message, it has encountered some legal problems which never met before comparing with the traditional contracts in the process of Electronic contracts conclusion; Secondly, the electronic contract subject was analyzed. We concluded that:in the protection of minors and goodwill’s interests, we should abandon the protection of minors’ interests which we always advocated. Thus there are needs for the creation the principles of the civil subject behavior belong to Electronic contracts. We have affirmed the legal status of electronic agents and legal validity of contracts they signed and acknowledged the existence of electronic intermediary agent. We suggest the feasible way to confirm the identity of the contracting by way of a combination of internal and external electronic signature in order to break the virtual nature of electronic contracts; We defined declaration of will by way of Data message is electronic declaration of will and confirmed the electronic declaration of will to be the defect of declaration in traditional civil law. Electronic error responsibility should not treat as the same but particular case is particular analysis. Then we analyzed the offer and acceptance of electronic contracts. We thought that there is no absolutely unified theory which could distinguish electronic offer and offer invitation. They should be treated differently due to the different situation; We ensured that the electronic offer can be recalled and cancelled. Electronic contract can be concluded in the electronic cross offer with the agreement of the two parties. At the same time, electronic commitment also should be allowed to recall and cancel. We should break the traditional rules of which contract cancelling constitute a default for the sake of party autonomy and the maximum interest of the society; For the last part, in searching on the legislative status at home and abroad, we have absorbed the essence of which we can draw lessons from and accepted the fact that lack of legislative situation in our country. At last, we suggest some specific suggestions to establish a separated and dedicated "Electronic Contract Law" and other relevant supporting laws with Chinese characteristics.