On Several Legal Issues In Electronic Commerce In China

In 2003, I, as a legal counsel of a large foreign investment enterprise (purchaser) in Shanghai, wrote a e-business agreement between it and its up-stream co-partners (factories), the general aim of which is to arrange their business cooperation model from traditional contracts to e-business contracts on basis of the hardware and soft ware of the purchaser's website. At that time the only rule is the Contract Law promulgated in 1999 (the E-Signature Law is still under writing). Being lack of official rules and regulations, it is a great challenge to me. I read lots of government regulations and law theories, then I came to this thesis about how to solve the key problem-several legal issues of the e-business contract after I compared the differences, characteristics between traditional and e-business contracts.Along with the rapid development of computer and internet technologies since 1990s,e-business has brought fundamental changes to the commercial operation model. And together with these changes, e-business contract become an issue that an individual, company, government would have to face in a digital economy. Because of these changes of environment and commercial model, the traditional legal system cannot be in consistent with the development of e-business and it requires new laws or rules to regulate the operation of e-business. But the current Contract Law only has definitions, which helps the development of e-business contract. The E-Signature Law, which was promulgated in August 2004 and became effective in April 1st, 2005, only resolves the identity problem of e-business contract's legal entities. It's a pity that there is still not a common law which focus whole stipulations of e-business contract.E-business refers to all kinds of commercial activities through computers and internet, or activities of establishing, performing, changing and ending civil rights and obligations with EDI, e-mail, etc. Its technical characteristics is transforming and dealing with all kinds of business information by web, its main commercial characteristics is that nearly all business activities are through computers and INTERNET.Article 11 of E-Business Modal Law of UNCITRAL stipulates: "in the context of formation, unless otherwise agreed by the parties, an offer and the acceptance of an offer maybe expressed by data messages, Where a data message is used in the formation of a contract, the contract shall not be denied validity or enforceability on the sole ground that a data message is used for that purpose". Article 12 " As between the originator and addresses of a data message, a declaration of will or other statement shall not be denied legal effect, validity, or enforceability solely on the grounds that it is a data message". All law papers about e-business of USA and EU chose the e-business contract as the key point. According to Article 11 of our Chinese contract law, e-business contracts are involved in the scope of contract law.The e-business contract is the core of e-business. Maybe different e-business operators pay attention to different legal issues in an e-business contract. For example, an international e-business operator may pay attention to conflicts of different laws;B2B e-business operator may pay attention to effectiveness of transactions and whole law environment;B2C e-business operators pay more attention to privacy and protection issues for consumers;â–  e-business transaction platform may pay attention to its legal responsibilities;the information service provider may pay attention to legal issues of luggage emails and internet advertisements;search engines;patent issues of software of technical providers.Compared with traditional paper or oral contracts, e-business contract has different characteristics. E-business contract are bidden and accepted through INTERNET. Identities of the contract parties and accepting the contract are mainly conducted by e-mails. E-business may rise lots of legal issues due to invisibilities of the environment, such as the concluding site, modes, expressions, evidences, protection for the consumers, form contract, e-agent, effectiveness, extension and use of e-signature, burden of the contract breach liabilities, jurisdiction of the contract conflicts, etc.E-business has already challenged the current law rules as a wholly new transaction mode. Although e-business contracts are involved within the scope of the current Contract Law (such as the extended definition of Article 10, section 1 and Article 11), the current contract theories could not resolve various conflicts in the e-business contract. We must be aware that Contract Law cannot and would not resolve all legal issues of e-business contract. To facilitate Chinese e-business, it's the requirement of rapidly developing our e-business and pushing ahead the information industry, it's also the requirement of making our marketeconomy and constructing our wealthy society perfect. It's more pressing when we face a great opportunity of e-business rapid development. Our policy and law environment must overcome the shortages in legislative, jurisdiction, administration and move the obstacles it brings to the industry development.