Analysis: Chun-Quan Liu (Beijing Guangzhou Sheng Law Firm Shanghai Office) Site Date :2007-5-15 14:02:18
Abstract: Electronic commerce whether local legislation necessary? What is the positioning of Control Law or the promotion of law? Substantive law or procedural law? This theoretical framework is not perfect from the point of view, but from the current problems facing the development of e-commerce and e-business purpose of proceeding on the development of electronic commerce need to solve the problem proposed.
While at home and abroad for what is the definition of electronic commerce there are different views, but did not affect the rapid development of e-commerce. According to the latest statistics, China's largest e-commerce site in 2006 transaction volume has exceeded 169 billion yuan in 2007 reported daily volume has been approaching 100 million yuan. At the same time, often appearing on newspaper and fraud, complaints can also force the issue of e-commerce transactions, and cast a shadow. Highway run fast, not only have good hardware, but also there are rules of the road, now a network of electronic commerce has been issued by the size of the physical hardware conditions, priority rules of the game is missing, therefore, must quickly develop e-commerce laws and regulations.
From a nationwide view of the city's competitive situation, the national information industry (hereinafter referred to as IT) giant, mainly in Beijing, Guangzhou, Shenzhen, Hangzhou, Shanghai has only a grand one, but this year the World Bank released the latest urban competitiveness rating, Shanghai has been out of the former top ten. A significant boost from the traditionally more investment and increased investment in the field of view of GDP, Suzhou, Shenzhen, Guangzhou or even adjacent to Shanghai in Kunshan in direct competition with the state; from the financial center and the perspective of an international city, Hong Kong and Beijing also a strong competitor, and, above all in certain areas, these cities have some of Shanghai can not match advantage. Currently, Shanghai has proposed building an international financial center development goals in four centers, these centers will have the first place is the corresponding e-commerce center, so Shanghai is not as soon as possible if the soft environment in the e-commerce and a breakthrough may be in the new a leader in the development of a historic opportunity lost.
According to the provisions of the legislation law, e-commerce laws, Shanghai legal barriers do not exist. And the first step in Guangdong and other places have a place to e-commerce-related legislation has already set a precedent. Shanghai's e-commerce legislation, the legislation can not be copied elsewhere, or may not be able to solve our own problems; can not mess pompous declaration, or futile; more can not be too stressed "to strengthen the regulation" and threatened to e-business run, otherwise more harm than good, not as good as not to engage in the local legislation.
I superficial view is that Shanghai's e-commerce legislation should first be defined as grafting the relationship between e-commerce and traditional laws, because the e-commerce has its own characteristics, need to study and to regulate, but not the vacuum created e-commerce, can not be divorced from the existing legal framework, therefore, how to marry e-commerce and the existing legal framework is that we need to think the first question.
Second, e-commerce legislation must reflect the new technical features, it is necessary to solve the current e-business development practical problems encountered, but also has certain forward-looking.
History of Internet development, and technology developed rapidly, often in the exploration business model gradually mature. And the characteristics of network technology is that new thing successful business model from a certain distance, but once the business models mature, it will quickly translate into productivity. Google and other companies on behalf of the new economic development history, the founding stage will more or less offensive to the traditional rules of the game, touch the vested interests, and once these companies become their own vested interests, will spare no effort to fight against new entrants, Microsoft of the IBM, Google the company, were found in patients. Therefore, in the Network Economy, legislation should not be easily blocked new things. But should remain technology neutral, focusing on long-term interests and the interests of society as a whole, might have taken a look, the camera moves.
Of course, e-commerce practice, the reality facing the pressing issue, the legislature must be standardized and provide effective solutions, and must guide enterprises through the design of the system to self-adjust their game behavior, and can not take administrative control of the old road.
For example, current e-business is a small complaint hot controversial issues, such disputed amount is small, by means of solving the high cost of litigation, time consuming, people have a lot. Shanghai's existing e-commerce industry associations to take over complaints authority and the force of law are not guaranteed. If this issue to the Government, certainly a lot of money to invest energy, not necessarily to get good results, so the author in the Shanghai Lawyers Association to draft legislation related to e-commerce deputies have proposed a "small dispute arbitration" system learn from our online domain name arbitration mechanism that allows parties to choose (be paid) or hearing (the default low fee) is not sitting, and ruling the losing party to bear the prevailing party attorney's fees and investigation costs; for the protection of notarization, the proposed arbitrators from familiar with e-commerce and the law society and independent election publicity; and the award must be full access (except otherwise agreed by the parties). Like this through a variety of supporting system design, the purpose is to simplify and cost savings.
Third, Shanghai E-commerce legislation should be to create a good e-commerce software development environment, to encourage entrepreneurship, attract e-commerce enterprises, strengthen the norm rather than strengthening supervision.
According to my lawyer and friends with the Hong Kong exchange in the understanding of many of our friends think Shanghai's hardware has not inferior to Hong Kong, or even slightly better in some aspects. All the cities in the Mainland, Hong Kong in the business culture is closest to Shanghai, while Shanghai and Hong Kong may also be major differences in the software. In my view, Hong Kong for many years was named the best international business city, many aspects of Hong Kong is worthy of our study and reference. For example by promoting the rule of law, integrity in business enterprise software to create a good environment for the development of professionals and professional organizations to enhance judicial independence and credibility to become the business center of Shanghai, the financial center, Dispute Resolution Center, and so on.
Meanwhile, e-commerce legislation and must not have a place to protect the so-called "Chinese characteristics." Because e-commerce features and vitality lies in its convenience, including network characteristics without borders. If we have a place to protect e-commerce legislation, or the so-called "Chinese characteristics" of the contents, then the cross-border e-commerce business worth mentioning, other provinces and cities matter whether e-commerce companies, will choose a local law as a jurisdiction and avoid Shanghai, Thus, Shanghai will be marginalized. Our aim should be to pass legislation to guide businesses to choose Shanghai as the jurisdiction, not the reverse.
Of course, we must emphasize that the choice to guide enterprises in Shanghai, does not mean unconditional accommodate business interests, just as Hong Kong into an international dispute resolution center, but the law does not accommodate the business interests of Hong Kong, as the credibility of the law in its proper balance of interests and independence of the judiciary , fair and credible!
In view of these characteristics described earlier, e-commerce of local legislation may need to be a comprehensive nature of the legislation, rather than an industry legislation also requires both physical and procedures, or even have to cross, several departments involved in the traditional method of problem . According to the author an opinion, the following issues is the need to be resolved immediately.
First, the main body of the scope of legislative norms
Now some e-commerce legislation and academic discussions, more companies involved in e-commerce platform, payment companies, buyers and sellers, certified. These are of course necessary.
I think we need to increase the basic telecom service providers, including wireline and wireless, because they are physically access the network service providers, they directly determine the safety and basic e-commerce transactions. There is also the subject of information security, including electronic trading software, antivirus software, service providers, and hackers.
Second, e-commerce related businesses profit model and market access issues
E-commerce businesses, especially e-commerce platform to provide online business profit model is to be studied, whether the recognition of existing for-profit e-commerce business model, if not approved, the law on how to leave room for profit-making enterprises, it is necessary solution. Xianyou e-commerce businesses, some through the payment means to achieve profit, but according to China's laws and regulations, payment and settlement is actually a financial activities, now Industrial and Commercial Bank of China and China Merchants Bank's electronics booming banking Yijing development, it recognized the existing enterprise management and business model, if not recognized, how to give them a profit model, which is to be studied in depth. For e-commerce businesses, if the local legislative recognition of their profit model, no doubt can help companies eliminate worry. Enterprises to increase investment, expand the development.
Once the profit model, then there is a problem that is on e-business division and the need for standardized e-commerce market is basically no market access restrictions (special goods such as drugs and tobacco, the department concerned otherwise specified) In theory, there are B-C, BB, CC, B-(B + C), (B + C) - (B + C) so few, however, as B (business) and C (individual) risk recognition ability and resilience is a significant difference, and accordingly, the legal system should be designed to be different, for e-commerce enterprises, especially enterprises to provide e-commerce platform, whether to allow its senior management BC, BB service? If permitted, how to prevent diversion of such brokerage and deposit brokerage business or self confuse other business risks? These are that we need to consider.
The third level of market access, there are some areas, according to the characteristics of the field or method must be explicitly excluded from the upper sequence of e-commerce, and the corresponding need for additional legislation to regulate e-business, which include real estate and other real estate transactions (e-signature law is Provisions), e-finance (banking, insurance, securities, futures), and so on.
Third, the small dispute settlement mechanism
Currently, there is a problem in response to focus on the integrity of e-commerce, after a dispute can not be solved, is to limit the further development of electronic commerce as a bottleneck. Shanghai's existing e-commerce industry associations to receive complaints, but has no coercive power, can only be a temporary solution. To solve this problem, and may require the introduction of insurance (the insurance companies to develop and offer insurance services transactions, litigation risk insurance services), small dispute arbitration, personal integrity system (to be credited to individual bad credit record file) and other mechanisms for the formation of a system solution through system design to guide business and personal integrity, rather than an administrative department designated to supervise.
Because litigation is a basic civil system, local legislation can not break the upper limit law, but I think that within the framework of arbitration law by setting up small dispute arbitration, the parties choose to pay less or pay more money does not sit normal hearing, and by the arbitration provisions Set short-term mechanism of fast, and then elected by the public and publicity arbitrator, the award means of public oversight, I believe that not only operate but also to ensure fairness and credibility.
Fourth, data security
First, because China's current telecommunications service concentrated the main body, such as Shanghai fixed-line telecommunications, mobile's Shanghai Mobile, and so on, some companies even monopoly in certain areas of the network access services. In order to ensure that e-commerce security must break monopoly.
Secondly, it must require off-site disaster recovery and the development of emergency plans in case as a victim of unexpected events such as the Taiwan earthquake, triggering panic and run incidents.
Again, the "Internet Banking Thief" This malicious software must provide civil compensation system design, civil liability for malicious software.
Fifth, anti-unfair competition
Register for e-commerce network of real name appears false or key words, or malicious changes in search engine search results or search results, rankings, including the use of HTML meta tags (meta tag) embedded in the well-known trademarks in order to attract traffic, etc., should be standardized to promote business integrity management.
Sixth, click on the validity of the contract and standard terms of Regulation
Click Network and software contracts is a common phenomenon, but the simple format of contract law the relevant provisions of the contract, not enough to solve practical problems, which need further study and to regulate.
IV Summary
E-commerce is far more than those mentioned above in this article, as limited space, only summary addressed. The author believes that the payment and certification, details such as electronic signatures, and other businesses as it relates to interoperability issues, appropriate level of research published by the provisions of national ministries, local regulations should not be too specific.
Shanghai E-Commerce to discuss legislative proposals and have two or three years, but progress is relatively slow, it should be said that this and the rapid development of e-commerce does not fit, is not conducive to the development of Shanghai E-commerce, the proposed Municipal People's Congress may consider legislation open tender, in order to accelerate the development and discussion of the draft law process, the law as soon as possible, and let it play its due role.
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