Research on the Legal Issues of Email Applications in Electronic Contracts
High cloud
With the popularity of the Internet and the e-commerce era, electronic contracts have emerged in business activities as a brand new transaction form, and the international legislation, and the Chinese contract law have established legal status and related content of electronic contracts, which thus triggered Legal research on all aspects of electronic contracts.
In the field of electronic contract legal research, as the most common information exchange form on the network, the legal issues of email are undoubtedly the most practical topic, because email is the establishment, effective, performance, electronic evidence of email, etc. It will have a decisive impact. This paper tries to explore how to comprehensively use legislation, justice, etc. to solve legal issues caused by email.
I. Technical characteristics of email
The law is the reproduction and norm of objective facts, so the legal issues related to email must first know: What is the technical characteristics of email?
Email is a number of information collations such as text, picture or sound, such as writing, picture, or sound through the Internet via the server to the other 10 sets of information on the other terminal. [I]. Its transfer principle is different from the ordinary fax text. When the sender presses the "send button", the computer splits the message into a number of separate packets, transmits the Internet, and then follow the server according to the network transmission status The path is sent to the receiver's computer. Finally, these packets come from all over the world, and reach the servers of the recipient, re-combined into a complete, enabled for the user to read.
A complete email usually includes the following three aspects:
1, mail transmission information, usually:
1) Send and receive both parties server addresses;
2) The time to send and receive (subject to the sender and the recipient computer);
3) If the third party is forwarded, the address and receipt of the third party server should also be included.
2, the header information of the mail, including:
1) Recipient email address;
2) Sender email address;
3) The title of the message.
3, email content, including:
1) Mail body;
2) Attachment.
The first content described above is to specify the location and time of the email, the transmitted target server address, is usually generated by the network server according to the set content of the second item.
The second content is set by the sender before sending the email, you can use the master box address that the sender registered with the online account registrar or the email address provided by other network service providers, the email address is the address of the mailbox server. Not limited to domestic.
The third content is input and set by the sender to use the dedicated software. It is not too much different from the normal word processing software on the method. However, if the message is included with a picture, sound or animation, you need to use other special software.
Second, basic legal issues and countermeasures
Two basic legal requirements for electronic contracts: formal (in writing, forms and entity) - the content of the content, constitutes all the contents of the electronic contract, the main body of the electronic contract, the offer, promise, written form, sign, effective time, place, Legal issues such as evidence efficacy, and it is related to the above two basic components.
1, written form
The following is a significant difference between the electronic contract and the traditional written contract:
1) The expression is different. The electronic contract must rely on a computer such as a computer to express its content, and traditional text is not required to rely on machinery.
2) The storage medium is different. The essence of electronic contracts is a set of electronic information, depending on magnetic storage media such as computer hard disk, floppy disk, ribbon; traditional text is mainly traditional paper;
3) The credibility is different. Based on the storage principle of electronic information, the electronic contract is easily tampered without leaving traces, and the original original fidelity recorded on conventional paper is high, and it is easy to discover after being tampered with, and thus the credibility is high. In view of the above characteristics of the electronic contract, traditional written formal laws require it to move to e-commerce. In response to the above, the United Nations Trade Fa Conference "Model Law" has adopted legislative technology of "Functional Equivalence Approach," I hope that "written form" is adopted without requiring countries to cancel their domestic law on written form requirements. "The expansion of the expansion is within the scope of the electronic contract into the" written form ".
my country's legislation absorbed the legislative idea of the Trade Fa Conference, and the email is used as one of the contractual forms of the contract, which is included in the "Contract Law" provisions of the Contract Law. In Article 11 of the Contract Law, "" written form is the form of content that can be tangible with the contract, letters and data (including telegraph, electrical, fax, electronic data exchange, and email) " .
Therefore, email is used as a legal written form, and its legal status is clear and the key is to prove its authenticity.
2, email effectiveness
In order to prove the identity of the email, the email is not illegally modified on the way, the electronic signature is born, has become a network era to solve the above two real technical guarantees. Regarding the relevant issues of electronic signatures, there have been a lot of discussion on books [II], this article will not be described again.
However, electronic signatures also have their specific defects: one is not completely reliable in technology, as "the" Tao high, the magic is one feet ", the hacker's increasingly rampant and technological advancement makes all confidential technology, many times Confidential technology is redefined example, making this naive electronic signature technology more difficult to obtain people's trust; the second is that electronic signatures are only solved the identity confirmation and content of content, and cannot solve other legal issues of email; It is a real life, for the consideration of economic costs, trading habits, etc., there is no use of electronic signature email, which is very practical. It is very realistic.
For emails that do not use electronic signatures, the author believes that from the perspective of protecting new technologies and promoting social progress, the legislative principle of "the meaning of authority" should give it to the legal status of it. Modern legislative spirit is not that the more legislation is, the better the details, but the legislation helps to improve the efficiency of the transaction and meet the transaction risk of the transaction risk. If both parties recognize emails with no electronic signatures during the transaction, this is enough to explain that the transaction has a clear expectation of the risks that it may bring. At this time, the law should respect the party's agreement on this, according to The parties agree to determine the efficiency of email. Even if there is no email using an electronic signature, if it is in line with the agreement, it should be valid unless otherwise evidence.
3, distinguishing between the transceiver
Email can only be written and issued by natural people, so it is usually easier to confuse this, which is the problem of personal or legal people, which directly determines the issue of UNEP.
The author believes that if the email receiptors have the right to represent the legal person, in addition to the implementation of the legal party to the authorization commission, mainly look at the two standards: I have been in contact with the relative party before it is. Whether the mailbox specified by the email and the return post is a special mailbox. Of course, this approach is still unable to prevent legal staff from maliciously damage the interests of the legal persons for some reason. Therefore, for the sender, the cautious practice is to sign a written confirmation with the transaction each other; for the recipient, ask the sender to request a written authorization of its email contact. It is a way to compare insurance. For several common emails, the way to judge the transceiver is as follows:
1) Many times. If the same electronic transaction, there are several mail exchanges, start the legal name, and then directly contact personal name, if the content is based on the content, it can be apparent that the electronic transaction is reasonable and continued, and should be identified as a legal behavior.
2) back. Email write software examples usually have a reply (reply) function, when the writer writes the reply content Press the send key, the software will automatically receive the message content as part of the reply, attached to the reply to the text The address of the mail is sent. In this way, although the message may not have any signature, the return behavior is obviously a response to the original mail, then the reply person is based on the original email.
3) Email is not signature or confirm. On the network, because the recipient's email address is specific, even if there is no signature, as long as the email is not wrong, email will generally not send, so in order to tell the efficiency, there is no signature of the email. If the traditional legal concept is kept, it is unrealistic and not objective. The author believes that the email receiptors shall be based on the mailbox owner, and the signature is only used as a reference. If you can prove that all the mailboxes of the sender, you can estimate the message of the message for the message for the particular mailbox.
4, specific system
Among the contract law proposes an important specific system concept. Article 16, paragraph 2: "The contract is used in the form of a data text, and the recipient specifies that the specific system receives the data text, the data message enters the time of the particular system. For the arrival time; the data text is not specified, the data text is taken to enter the first time of any system of the recipient. "
The "specific system" concept is important because it is an important part of the establishment of electronic contracts: the important issues such as the establishment, effective or revocation of the offer and commitment. What is "specific system" so far, the law is freshly studied. From a technical point of view, the specific system has two, one is the server system, and the other is the mailbox system in the server. Since China's legislation adopts the "arrivalism" of the mainland legal system, the specific system seems to refer to the mailbox system in the server, because in addition to the mailbox system in the server, there may be other systems, and only the mailbox system is the recipient Direct useful systems; however, from the technical process, email transmission mode is the transfer between server-servers, and mailbox systems are often only the internal settings of the server. Email must be transferred through the server system. Among the person's mailbox, therefore the legal status of the server system that is integrated with the mailbox system is unable to explain the email system.
The author's opinion is to balance the risk between the email sender and the recipient, the law should be set according to technical characteristics, and the specific system should refer to the server system where the recipient mailbox system is located, but the recipient must be accurate Set the email address of the recipient.
According to the contract method, the specific system is divided into two kinds of "specified" and "non-specified", which are easily confused, including: 1) The email address in the mail header information.
If the sender enters the sender's email address in the header information, it should be considered as the sender's specified backup address. If you do not enter a sender's email address, the computer usually press the default setting, writes it as the default email address of the computer, which should also be considered as the specified backup address of the recipient.
2) Email the email address that specifies the reply in the text or the attachment.
If there is a sender's email address in the message header information, the message is specified in the message or the attachment, the author believes that this situation belongs to the sender's special designation, and should pass the text or attachment The mailbox address specified in the middle is accurate.
Because the mailbox address settings are more complicated in the mailbox address information. There are many mailbox address search software on the network, which can automatically filter and intercept mailbox addresses in message header information, use it as business or even irritable purposes. Sometimes the computer is worried that once the real email address is set in the header information, it will be spam or viral email attack, so it is intentionally set it to a free email address or even false email address; sometimes a computer is not email A piece of person, if you need to modify the email address in the header information, you must modify the default configuration of your computer.
3) Network advertisement or email address specified on the website.
The case should be taken separately from different situations. Because e-commerce service providers' websites usually use multiple email addresses at the same time, all departments and even specific personnel have their own mailboxes, which are used as different purposes. Common business mailboxes and webmaster mailboxes. Business email is the service provider as a commercial activity. The NMS mailbox is generally used as a service provider management website, solving technical problems, especially in the server hosting, the network management is likely to be employees of the service provider, and more likely to serve User-hired technology company. Therefore, it is not recognized as a designated system.
However, if you only give only a mailbox address on the site, there is no distinction, you can be determined for any system of the recipient.
4) The third party mailbox address specified by the recipient.
Sometimes, the email address specified by the recipient is not the real email address of the recipient, but may be a third party's email address. Because some service providers on the network provide users with forwarding the email service, set multiple mailboxes as different purposes, is a common practice on the network. At this time, you should use a third party's email address as the specified address of the recipient, because whether the recipient's real mailbox address is consistent with the specified address, as long as the address is specified by the recipient, that is, the contract method The situation of the instruction performance is issued to the address to the recipient.
5, arrival time
Chapter 2 of the Contract Law stipulates related issues related to the offer and commitment, and it is very important to "arrive at time", which is related to the issue of the offer and promise effectively or revocation.
Article 16, paragraph 2, of the Contract Law, stipulates: "The contract is entered into the contract. The recipient specifies that the specific system receives the data text, and the data text will enter the time of the particular system, and the time is considered to arrive. The data essays enter the recipient's first time, as the arrival time. "According to this provision, email enters a specific system - the time of the server system where the mailbox is located is time, this time is the establishment of an offer or promise. time. This time is typically stored in the transfer information section of the email, which is automatically set by the server that receives the mail.
There is a problem with the following issues:
1) Regarding the determination standard and procedures for arrival time.
In general, the mail reception time stored in a specific location in the email file is reached. However, since the email content can be easily changed without retaining, the reception time is often unreal because of the following reasons. First, when the reception time is the boundary of the parties to the rights obligations, the recipient may deliberately change the reception time to maintain its own economic benefits; the second is that the email reception time is automatically set according to the computer clock system time, but the system time can be used by the user Any adjustment, sometimes the user will be in order to run an expired shared software, etc., deliberately put the time to be inaccurate, then the transmission time will not be more than the fact that the time is not in accords. For the above, a relatively possible method is not subject to the email time stored in the recipient computer, and the time displayed by the mail server is based on the email service provider is usually an independent third party, which is issued by it. Proved to be more fair and true. Therefore, the legislation of electronic signatures should be indicated that the supplier should cooperate with the mail service provider to issue the mail service provider to receive the reception time.
2) The time error of the server.
Sometimes, the server's time and real time have errors, such as a few minutes, etc., this reason is quite complicated, there is a technical factor, but it is simply based on the server, it will cause many obvious errors and confusion. Therefore, the server time should be regularly adjusted, and strive to be accurate. It is recommended that in legislation should list regularly to one of the statutory obligations of the mail service provider.
3) Time difference adjustment of arrival time.
If the mail server is abroad, the arrival time is actually abroad, then pay attention to the time difference, with the time after conversion time, the mail service provider should do this in the technical manual.
4) The arrival time during the transfer.
If a third-party transfer method is taken, the time should be received by the server where the third party's mailbox is located is arrived. Because if the server time is located in the ultimate email address, it is extremely unfair to the sender.
Sending an email on the network, if you use the same mail server and in the same city, the email is from sending to the whole process for more than three seconds; in the same country, generally no more than two minutes; international, generally no more than ten minutes Of course, this is related to whether the line is smooth. However, through a third party transfer, especially through foreign servers, due to a lot of links, the recipient time is often long and it is difficult to estimate. In this regard, the sender cannot control and predict.
6, email forensics
If the electronic signature email, the recipient cannot be easily changed, so it can be submitted to the court directly as evidence, and then determine its evidence efficacy after identification of the court. But the general email, because the parties can be easily changed, the credibility is low, so they should pay attention to:
1) It is best to give evidence to the mail service provider, do not directly issue a certificate;
2) Guidance should be carried out on the content of the forensics, or apply for the court for evidence;
3) It is best to use the print source code mode, which can make all the contents in the message; the contents in the attachment should be printed as much as possible according to different file format; if the sound file can be recorded, it can be recorded after text Out, and retain the original voice file for future quality.
7, proof tips
In 1996, he called "China Email First Case" is a typical case in this area. The plaintiff successfully applied the above electronic evidence and proof technology to force the defendant to actively mediate the end, and left a quite successful example for the use of email in judicial practice.
The main case is: On 9 April 1996, Xue, Peking University, received an email from the US Michigan University on approved her approval and providing scholarships, but there was no formal notice, and later passed After the inquiry, some people sent a resignated email to the secretary of the University of Live with her nominal, so that she lost her own opportunities. She is suspected to be a ghost from Zhangmou in the bedroom, so I collected the following electronic evidence:
1) On April 12th at 10:12 am, the email from the mark "204", the sender is signature "Nannan", the recipient is the University of Missouri, the University of Columbia;
2) After four minutes, another e-mail from the same computer, the sender is the plaintiff, the recipient is the University of Michigan;
3) Proof of the Beijing University Computer Center showed that the above two email pieces were issued from the same computer within 4 minutes from the front and rear, and the users at the time were Zhang.
4) Technical test results show that Zhang has no time to steal when using this computer.
Xue was in accordance with the above electronic evidence to the Beijing Haidian District Court, and Zhang Mou falsified emails with her name, so that she lost her abroad and asked to apologize, compensate for economic losses. The case was ended by the Shanghai Haidian District Court, and the defendant apologized in writing and compensated RMB 12,000.
Two emails and the electronic evidence of two news about computer systems, email issued, constitutes the most valueful part of this case. Excluding and identifying email is the most core problem of this case.
In this case, the plaintiff also used the two methods of "cover coverage" and "exclusion method", from the forward opposite aspect of the issuer, "cover method" means: connecting the same computer as a connection. Both ends of the sending behavior of the first seal and the second email, to cover the user of the computer in this period of time is Zhang; "Excluding" means: excluding the technical test results During the above period, the computer is agreed by others to determine the only correspondence between the defendant Zhang and the violations of violations.
In electrical contracts, we will often encounter the boundaries between technical limits and principles. Regardless of how high-quality technology, there is always its limitations, and it is impossible to reproduce the truth; just as described above, if you follow the tradition The principle of proof, the plaintiff must use direct evidence to demonstrate on a specific time and machine, is the send key of the defendant presses the email. Obviously, in the context of modern high-tech rapid development, this kind of endlessness is the concept of facts will inevitably cause a lot of social costs and low efficiency configuration of resources, which is obviously incorporated with the spirit of modern society with efficiency.
The success of this case is to show us how to use proof techniques to enumerate the legal correspondence between infringement and consequences to the appropriate level, and very well balance the level of proof of legal requirements and the technical level. Relationship.
Times in Guangzhou, September 19, 2001
