Research On The Effectiveness Of The Electronic Declaration Of Will

With the advent of the Internet Age, whether the theory of declaration of the will in traditional science of law can be applied into electronic declaration of will in the area of E-Commerce is a question worth studying.The answer to when does the electronic declaration of will including offer and acceptance come into effect, when will the contract be established is stipulated in Article 11, Article 16 Section 2, Article 26 Section 2, Article 34 Section 2 of our Contract Law and relevant provisions in the Electronic Signature Law. However in the practice, it turns out by searching practical cases through the website “Beidafabao” that the usage of the aforementioned articles is actually relatively low. The reason may be that many detailed parts shall be supplemented by theories due to the rough provisions. Among that the question of the effectiveness of the electronic declaration of will lays down as the basis of the theory of the declaration of will. So numerous disputations rising from the E-Commerce can only be resolved by grasping the entire system of the rules.Most German and Chinese scholars divided the electronic declaration into three categories according to the way of its formulation, respectively the declaration electronically sent, automatic declaration and computerized declaration. The degree of the automation of these three types increases step-by-step, examples respectively are as followed: sending an offer or acceptance by emails; the completion of the tourism bill by entering a simple code to the computer; automatic reply by the computer system after checking and confirming the availability of goods ordered by customers. The three aforementioned categories of the electronic declarations shall be identified as the declarations of will in the traditional sense.The differences between the first intention electronically sent and traditional intention is minimum, and its feature lies in that the intention will be generated electronically by one party and sent electronically as well. It shall be certainly seemed as declaration of will. Although the automatic degree of the second automatic intention is relatively high, the "trigger" for operation of the software is one party’s input. In other words, the content of the party’s input determines the content converted by the software, therefore also belongs to the intention of a person. In the third computerized declaration, although every time the process when sending the concrete computerized declaration is not intervened by one party, from the perspective of the counterpart, the other party has the reason to believe that the declaration belongs to the reasonable declaration of such party, and he wants to be subject to its constraint. In addition, the owner of the software or equipment has a general will when setting up such equipment or software, thus making computerized declaration to become declaration of will.During the research upon the effectiveness of electronic declaration of will, to judge the type of electronic declaration of will affects its time point to come into effect and the applicable standards. According to the traditional civil law theories, the declarations of will shall be divided into dialogue declaration of will and non-dialogue declaration of will. However during the development of the German civil law, people always have doubts to the dividing methods, therefore there are different ways to divide all declarations of will, such as dialogue declarations of will and non-dialogue declarations of will, declarations of will with or without the representation medium and declarations of will have been saved or not. The first dividing method, namely dialogue declarations of will and non-dialogue declarations of will, is most convincing method; furthermore there are two mainstream theories of the standards how to judge if the declarations of will are dialogue or not, direct communication theory and synchronization theory, respectively. According to the former opinion, dialogue declaration of will refers to the situation where both parties can communicate in direct dialogue, and either of them has the possibility to ask questions directly; while the main point of the latter view refers to that only in the way that the understanding of the other party synchronizes the sending of the will is the other party able to understand the content of the intention. If the situation can meet the requirement of the synchronization between the understanding and sending, it shall be judged as a dialogue declaration of will, otherwise belongs to the non-dialogue situation.By contrast, direct communication standard is in fact very fuzzy, and may lead to different conclusions when using the same chat program in different situations. That’s why synchronization theory is more practical and accurate. Based on this standard, network video, voice, etc. are typical dialogue electronic declarations of will while E-mail, QQ chat text, and using methods such as electronic data interchange system shall form non-dialogue electronic declarations of will.These divisions are meant to determine the theory applied to judge the effectiveness of a declaration of will. Based on the traditional theory, the effectiveness of the dialogue declaration of will is subject to the limited "comprehending theory", and the non-dialogue declaration of will shall comply with the "accepting theory", which means that only when the dialogue declaration of will has been understood correctly by the other party or can be presumed to have been understood correctly by the other party according to the objective situations; and there are two detailed standards for the accepting theory, namely space standard and time standard. The space standard requires that the declarations of will must enter the receive range of the other party, such as email address, computer system; the time standard emphasizes that the declaration of will can come into effect after a reasonable time period during which the other party is expected to be aware of the declaration of will. The rules when does data message come into effect are stipulated in the Article 16 of the Contract Law in PRC. But they lack in the prescription of one situation, where the data message has entered another system beside the system appointed by the other party. Then the intention shall be effect when the other party find and read it. Furthermore, the rules have ignored the reasonable time period during which the other party is expected to be aware of the declaration of will. It is stipulated that the time point when the declaration of will enter the receive range of the other party is exactly the time point when it comes into effect, which is much more beneficial for the sending party and unfavorable for the receiving party.The access barrier in the declaration of will theory also exists in the electronic declaration of will. In addition to parts where the traditional theory are applicable, the other party also have some special unreal obligations in electronic declarations of will, such as maintaining the normal operation of the receiving devices(such as email box), the obligation to find the declarations of will in some certain circumstances and the cooperation obligation when saving. All these obligations are generated upon the principle of good faith, which means there cannot exist standardized judgment, we can only judge whether the other party has already violated the unreal obligations in specific situations. Among them, the most common obligation is to maintain the normal operation of receiving device. It requires the other party to check and empty his mailbox for trading regularly, and he should also choose the appropriate mailbox size in compliance with the trading volume, otherwise he has to bear the adverse consequences.In addition, there are as well two kinds of special phenomenon belonging to the access barriers. One is the language problem, when the other party cannot understand the language, the declaration of will should come into effect after the time for necessary translation; Second is the format problem, when the other party’s computer system cannot render the content of the intention properly, such as software version is too low to edit the document made by a higher-level version of the program, the same processing method shall apply. The effect time in such situation must be put off till the completion of the necessary conversion. Only in this way can the interests of the other party be better protected.This thesis try to discuss the rules when the electronic declarations of will come into effect in Internet Age and some relevant special questions, by studying the traditional theory of the declaration of will and the E-Commerce theory in German law combined with the related laws and theory researches in China.