The Research On The Application Of United Nations Convention On The Use Of Electronic Communications In International Contracts

Nowadays, electronic commerce substantially changed the traditional paper trade form. It has greatly improved the efficiency of business transactions, created a huge economic benefit and especially promoted the development of international trade. Because there is a big gap between the traditional paper trading form and the electronic trading form, the law enacted in view of the traditional form cannot standardize the international trade environment where the new way to trade prevails. The change of the international trade form inevitably requires the corresponding laws and regulations to protect the transaction security. As the core legal body of the United Nations system in the field of international trade law, UNCITRAL has long recognized this problem and has promulgated the "Model Law on Electronic Commerce" and "Electronic Signature Model Law" in 1996 and 2001. But over time, these two model laws and related laws before can not meet the needs of electronic commerce in international trade, so, UNCITRAL decided to prepare a new law to regulate today’s international trade environment. On November 23,2005, the United Nations general assembly reviewed and adopted "The United Nations Convention on the Use of Electronic Communications in International Contracts". The pact inherits the reasonable places of the two previous model laws and has its own innovations. The purpose of the convention is to eliminate the obstacles in the existing laws that affect the development of e-commerce in international trade. So far,20 countries, including China, have signed the convention and 6 of them have made the convention come into force. As the first specialized convention in the electronic commerce field, it will play an important role in the coordination of the domestic legislation and the promotion of the development of e-commerce in international trade. On the basis of analyzing the content of the convention, this paper analyses the possible problems in the process of application of the convention and its influence. It summarizes the reference significance to the legislation of our country, then put forward its own proposals to the improvement of our country’s electronic commerce legislation and problems that should be paid attention to when China officially joined the convention.This paper consists of five chapters, the first chapter is the introduction which introduces the background of the problem and then points out that the popularization of the Internet technology in the world has brought substantial changes in the form of international trade transactions. Therefore, in order to standardize the new form of commercial activities, the convention comes into being. Next, it analyses and reviews some research achievement from home and abroad. Finally, it illustrates the innovations and deficiencies of this article.The second chapter focuses on the basic structure and applicable rules on the basis of the content of the convention. It is divided into three sections, the first section analyses the background of the convention, it conclude that the challenges made by the development of e-commerce to the traditional trade rules are the root causes of the birth of the convention, and the shortcomings in the existing international legislation is a catalyst for the rising of it. The second section briefly introduces the naissance and basic content of the convention, the third section focuses on analyzing the applicability of the convention and its basic rules through appropriate case study, including:the positive applicability and its limitations, the legal effect of electronic contract and form requirements, sending and receiving rules of the e-communication and the determination of the business place. Then we learn the scientific nature and advancement about the convention.Chapter 3 is the keystone of this paper, it focuses on the basic problems that may appear in the process of the application of the convention. This chapter points out five problems that the convention might exist in the process of application, respectively is:the contradictions of the applicable mechanism, the imperfect provisions of the electronic contracting fault, the stipulations about the invitation to offer is not comprehensive, the virtual company business problems and the fuzzy terms in the convention. At the same time, it analyzes these five questions profoundly by citing proper cases from the perspective of trade practices and fully exposes the shortcomings of the convention in the process of its application.The title of chapter 4 is "The reference significance of the convention to our country electronic commerce legislation". It is elaborated mainly from four aspects. First, it introduces the advanced experience of Singapore about using the convention for reference in its domestic e-commerce legislation, and sums up its reference to China. In the second section, it compares the convention with the existing e-commerce legislation of our country from four aspects, then summarizes both their similarities and differences. On the basis of the second part, the third part gives some advices about the improvement of China’s e-commerce legislation. In the fourth part, it expounds the matters that should be noticed when we access to the convention, including improving our domestic law in advance and making reasonable scope statement when we apply the convention.The fifth chapter is the conclusion of the article. It introduces the main content of the article. It also suggests that China, as one of the first batch countries signing the Convention, should certainly be formally ratified the Convention in future in order to better occupy a favorable position in the global international trade. What we need to do now is to make full preparatory work. In our country, we should improve our domestic e-commerce legislation through learning from the advanced experience of the convention and making up for its shortcomings; In the world, we need to study the terms of the convention on the declaration in detail before acceding to the convention, then make the statements in favor of our interests, as far as possible.