| Minors have a special civil legal status,and electronic contracts also have unique characteristics that distinguish them from traditional contracts.It is necessary to balance the stability of transactions and the protection of minors’ interests.However,the provisions of the Electronic Commerce Law of 2018 and the Civil Code of 2020 regarding the formation of electronic contracts by minors are not yet perfect,which has led to frequent disputes and disputes related to the formation of electronic contracts by minors.This article takes two typical cases related to the signing of electronic contracts with minors as the perspective and analyzes the prominent problems in practice,including the identification and confirmation of the subject’s identity when minors sign electronic contracts,the independent contracting ability of minors in electronic contracts,and the determination of the effectiveness of independent electronic contracts signed by minors.Regarding the recognition of identity recognition standards under the concept of transaction security,the Electronic Signature Law does not provide clear regulations on the effectiveness status of general electronic signatures due to the imperfect regulations on identity recognition technology.Its reliability standards actually limit its scope of effectiveness and exclude general electronic signatures.The validity conditions and validity content of electronic signatures should be stipulated in a unified manner,and actual performance should not be used as the recognition standard instead of agreement.It is recommended to establish a unified certification center or regulate it in the form of an industry association due to the technical deficiencies and trust issues of electronic certification service institutions,as well as the difficulty in identifying electronic certificates.For the issue of unclear identity confirmation rules,legislation should establish corresponding allocation rules for minors’ identity confirmation for different types of electronic contracts.Regarding the criteria for determining the electronic contracting ability of minors,regarding the unclear definition of existing concepts,the definition of pure benefits should adopt substantive standards from the perspective of the contract as a whole,and a dual track system that combines formal review and case review should be adopted to adapt to age and intelligence.Multiple factors should be considered,and the consent of guardians should be comprehensively recognized,drawing on the general consent of pocket money clauses.For the issue of excessively narrow scope of contracting capacity,individuals without civil capacity should be granted corresponding online contracting capacity.Regarding the issue of the effectiveness of minors independently entering into electronic contracts,firstly,regarding the establishment time of the contract,when the seller is an e-commerce operator,the special provisions of Article 49(2)of the Electronic Commerce Law should be applied.E-commerce operators are not allowed to agree on standard terms,which may result in the contract not being established even after payment by consumers.For the determination of the effectiveness of electronic contracts,some exception provisions should be made based on the original provisions,taking into account their particularity,to redetermine the effectiveness of format clauses in the field of electronic contracts in special circumstances such as obvious unfairness,significant misunderstandings,and fraudulent contracting. |
