电子商务期末论文.doc

辽 东 学 院 结 课 论 文（设 计）The Research on Shallow Talk about Research of System of Law of Electronic Business Affairs 浅谈电子商务法律制度研究学 院： 信息技术学院 专 业： 信息管理与信息系统 班 级： B0901 指 导 教 师： 贾英群 审 阅 教 师： 贾英群 完 成 日 期： 2011年6月15日 辽 东 学 院Eastern Liaoning University独创性说明作者郑重声明：本毕业论文（设计）是我个人在指导教师指导下进行的研究工作及取得研究成果。尽我所知，除了文中特别加以标注和致谢的地方外，毕业论文（设计）中不包含其他人已经发表或撰写的研究成果，也不包含为获得辽东学院或其他单位的学位或证书所使用过的材料。与我一同工作的同志对本研究所做的贡献均已在论文中做了明确的说明并表示了谢意。作者签名：_ 日期：_ _ Shallow Talk About Research of System of Law of Electronic Business Affairs浅谈电子商务法律制度研究摘 要本文立足于探讨电子商务及其法律制度的含义，以及构建电子商务法律制度的基本架构。发展电子商务不仅关系到国民经济的发展，而且影响到社会公众的生活，涉及到国家的政策、法律、信息技术发展和基础设施建设等一系列综合性的问题。本文从不同角度比较了有关电子商务内涵的各种思想，电子商务的内涵及特点，确定广义论为基本出发点；初步列举了电子商务引发的以下问题，电子商务给我国法律制度带来的挑战，电子商务的跨越式发展给消费者权益保护法带来的新挑战及对策，电子商务对刑法带来的挑战及对策，电子商务对我国传统税收提出的新挑战及对策，电子商务对程序法的挑战及对电子商务环境下侵犯隐私权的手段不断创新，越来越隐蔽。关键词：电子商务；法律制度；挑战；应对策略- I -Shallow Talk about Eesearch of System of Law of Electronic Business Affairs浅谈电子商务法律制度研究Shallow talk about research of system of law of electronic business affairsAbstractThe meaning that article base oneself upon reach its law system at discussing electronic business affairs, and the basic framework that compose builds system of law of electronic business affairs. Electronic business affairs has become a tide that cannot resist, develop it to matter to the development of national economy not only, and the life that affects social community, a series of omnibus problems such as development of the policy that involves a country, law, IT and infrastructure construction. Compared all sorts of thoughts of connotation of concerned electron business affairs from different point of view, decide broad sense talking is basic jumping-off place; Preliminary rights and interests of law of right of the contract law that listed electronic business affairs to cause, privacy, consumer keeps the problem such as law of insurance, criminal law, program and tax law, put forward to answer strategy.Key Words：E-commerce；legal system；challenge；Strategy- IV -目 录摘 要IAbstractII一、 The Connotation of Electronic Business Affairs and Characteristic电子商务的内涵及特点1(一) The Connotation of Electronic Business Affairs电子商务的内涵1(二) The Characteristic of Electronic Business Affairs电子商务的特点21. Cut Current Link精简流通环节.22. Save Shopping Time and Increase a Client to Choose Leeway节省购物时间，增加客户选择余地.23. Quicken Capital Current加速资金流通.24. Enhance The Communication of Client and Manufacturer增强客户和厂商的交流.25. Stimulate The Combination between The Enterprise and Competition刺激企业间的联合和竞争.3二、the challenge that electronic business affairs brings to system of our country law and answer strategy电子商务给我国法律制度带来的挑战及应对策略4(一) of electronic business affairs span the new challenge that type grows to protection to bring to consumer rights and interests and countermeasure电子商务的跨越式发展给消费者权益保护法带来的新挑战及对策.7(二) the challenge that electronic business affairs brings to criminal law and countermeasure电子商务对刑法带来的挑战及对策11(三) The new challenge that electronic business affairs poses to our country traditional taxation and countermeasure电子商务对我国传统税收提出的新挑战及对策14(四) Electronic business affairs reach the way to deal with a situation to the challenge of program law电子商务对程序法的挑战及对策17(五) the measure that privacy right violates below environment of electronic business affairs innovates ceaselessly, more and more concealment电子商务环境下侵犯隐私权的手段不断创新，越来越隐蔽18结 论22Conclusion23参 考 文 献24附录A演示文稿25致 谢26课程结课论文审阅评分表27课程结课论文答辩记录评分表28Shallow Talk about Eesearch of System of Law of Electronic Business Affairs浅谈电子商务法律制度研究一、 The Connotation of Electronic Business Affairs and Characteristic(一) The Connotation of Electronic Business AffairsThink commonly, electronic business affairs (Electronic Commerce) is to show buyers and sellers is based on computer network (basically point to Internet network) according to certain level, use the activity of all kinds trade that corresponding electronic technology place has. Its are main the ad that the function includes a net to go up, order goods, pay, client service and market research analysis, financial assess and manufacturing arrangement multinomial the commercial activity that uses Interact development. It has the branch of narrow sense and broad sense. The electronic business affairs of narrow sense points to the commercial activity that has through Internet only; And the electronic business affairs of broad sense will be used include network of the couplet inside enterprise of Internet, Intranet with Extranet wait for all sorts of different forms network inside everything all trade activity that computer network has business affairs of vest in electron. (二) The Characteristic of Electronic Business AffairsElectronic business affairs and photograph of traditional business pattern are like next characteristics than providing: 1. Cut Current Link. Electronic business affairs does not need jobber, brand shop and market, the client orders a product from manufacturer directly through the network. 2. Save Shopping Time and Increase a Client to Choose Leeway. Electronic business affairs provides wide choice margin for all sorts of consumer through the network, can make client the commodity that never leave home to be able to buy satisfaction. 3. Quicken Capital Current. The capital have enough to meet need in electronic business affairs need not be in client, jobber, bazaar between undertake, and be in a bank through the network directly undertake on in-house account, accelerated capital turnover rate greatly, reduced commercial issue at the same time. 4. Enhance The Communication of Client and Manufacturer. The client shows his demand through the network, order the product that oneself like, the manufacturer can understand user requirement immediately, avoid to produce the waste that go up. 5. Stimulate The Combination between The Enterprise and Competition. The product function of adversary and price and sales volume can understand to wait for information through the network between the enterprises, close to thereby transform a technology into the enterprise, enhance product competition ability. 二、the challenge that electronic business affairs brings to system of our country law and answer strategythe growing be the first to be affected of the challenge that electronic business affairs poses to contract law and countermeasure electron business affairs can give the contract law that regards commercial law as the foundation to bring an acid test, involve autograph of the legal provision of electronic contract, electron to wait for a problem whether effectively. 1. Trade bilateral identifying and attestation. This basically is a kind of mode that is aimed at B2B (electron business affairs, the abbreviation of Business to Business, namely commerce is right commerce, or the mode of electronic business affairs between the enterprise). A of electronic contract and written contract very big different is to trade face of bilateral and differs definite opinion, sign electronic contract however through Internet. Conclude through Internet the biggest difficult point of electronic contract trades namely bilateral identity acknowledges a problem. This issue can be solved through attestation center, and a lot of countries had implemented this measure. As a result of the position with attestation located center, ask it must have just, authoritative, reliability, and what it assumes the acknowledgement that obligation and responsibility must get law. Our country should perfect legislation to reach the standardization that attestation organization runs in order to make the use of electronic autograph. 2. Those who trade is lawful the becoming effective with the contract. A lot of electronic business affairs is medium trading is carried out on Internet, do not need real objective complete a business transaction. This is involved trade lawful and the problem that superintends to such trading. Additionally the becoming effective problem of electronic contract also is concerned with this, if the contract breaks the law, so inevitable does not get contract law protection. At the same time the becoming effective of the contract still involves the issue that how just calculates go into effect. Of electronic business affairs trade the requirement that wants be good law, cannot be the business affairs action that takes illegal means to seek profit. Should make the businessman accomplishes the action that avoids to break the law to happen above all so. Additionally the country also should increase the superintendence strength to Internet, make corresponding legal laws and regulations, being on guard Yu Wei ran. On problem of contract become effective, also reached basically now approbate consistently. Electronic acceptance reach rate very fast, cast mail and arrive almost at the same time, because this is on become effective time, wont put in very big difference commonly. To problem of become effective place, because count those who occupy text to accept a place to decide more easily, so place of U.N. Commission on International Trade law makes demonstrative law of electronic business affairsin adopt acceptance to arrive at a place to regard become effective as the place namely. 3. The effectiveness that the electron signs. Although our country is used in contract law “the function is equal “the effectiveness that the principle signs to the electron gives admit, but did not allude however in evidential law, put in the legal flaw problem with particular move. Electronic autograph adopts what form to just calculate active issue, we can draw lessons from the technology in law of American electron autograph indifferent principle, namely law of electronic business affairs makes public close key to add fine magic art, intelligence to block law and biology to differentiate a law to wait to traditional countersign method, asymmetry, cannot say turkey to one and buzzard to another, generate any discrimination sex demands; The progress that gives future the technology even at the same time leaves legal space, and cannot stop at the current situation. 4. Electronic contract admits really. Although electronic contract has convenient, quick, cost low good point, but the risk with also existing particular. Network safety is an opposite concept only, no matter how safe add safety of close or other network to be on guard technology, theoretic have by the likelihood of breach. And network virus or other and factitious element, bring about electronic contract possibly to lose, the form that takes written contract as far as possible so will give to electronic contract affirm. (一) of electronic business affairs span the new challenge that type grows to protection to bring to consumer rights and interests and countermeasure.1. Position of the buyers and sellers on the net is not quits. In shopping on the net, the increase that consumer must face operator him basis beforehand the pattern contract with good set. The clause of the contract often is the provision of be helpful for his and goes against consumer Xiang Yu the Conqueror that operator uses its predominant economy position to make. These clauses include the such as disclaimer, clause that lose power, court of justice normally administer the clause, the as far as possible move such as the burden that is the risk that gets on the contract, charge character actually arrives on consumer body. After consumer preference agrees, if trade hind produced issue, the businessman can defy with this of consumer complain, make consumer is in very adverse position. What law goes after is fairness and justice, we should protect the rights and interests of consumer, but the rights and interests that cannot think to dispute is consumed to should protect consumer on all nets. When explaining format provision, should abandon the traditional explanation that changes absolutely, want to adopt more agile decision criteria. When at the same time consumer is undertaking the network is consumed, also should use up certain obligation, be about to assume due legal responsibility otherwise. When operator is offering pattern contract, answer to will trade as far as possible element is accurate, convey appropriately consumer. This kind is informed should mature the network knowledge level to most consumers. Make most consumer need not undertake major grooms can be understood or understand its content. Avoid to consume dispute because of misunderstand and arising thereby. 2. Customer deals safety gets ensuring hard. In electronic business affairs, consumer is to pass electronic terms of payment to finish those who trade; this must have electronic account with respect to requirement consumer. The security that trades on the net is the problem of a heat that consumer cares generally. Consumer often hopes can simple finish quickly trade, but because the economic interest that worries about oneself again is operated undeserved or the hacker in breaks and suffer a loss. Accordingly, we must adopt significant measure discovery to trade systematic hidden trouble, be on guard of the hacker invade; Want work up to be a target with information safety, network safety soundly, add secret technology, attestation technology to be core, safe electron trades the system is a foundation, the security of electronic business affairs that has own intellectual property guarantees a system; Want to build an expert national attestation system, begin work of attestation of electronic business affairs honestly, confirm the lawful sex of the company capacity that undertakes activity of electronic business affairs, authenticity and accuracy. 3. The network overruns with false advertisement false, the pay compensation for what one has unlawfully taken after consumer shops is hard. In electronic business affairs, consumer can carry the conduct propaganda on the net and picture only to the understanding of the product, the real quality circumstance that tastes to fathering and product itself may exist concealment the blemish of flaw, product lacks understanding, make consumer is ordered on the net hind, the ability when awaiting actual delivery even affirms the merchandise that whether orders with place is consistent, the quality that brings about actual delivery commodity easily, price, amount and the merchandise that order are abhorrent. Appear consumer of this kind of problem should retreat goods or claim for compensation to operator, need business affairs website to provide the detailed information data of operator above all, but the detailed information data that business affairs website often rejects to offer operator because of commercial secret, consumer is hopeless to this. To this, we can use all sorts of methods integratedly, build the system of prevention and cure of beforehand precaution and union of photograph of punish of after the event, through drafting special regulation, prohibit strictly network spending is mixed false advertisement, the electron that provides a sincere letter to consumer trades environment. (二) the challenge that electronic business affairs brings to criminal law and countermeasureIn activity of electronic business affairs, information is shared and information safety is a pair of contradiction. Although we can reduce the method that shares degree to achieve the goal of problem of safety of control network news through adopting, but this is give up eating for fear of choking-refrain from doing the necessary for fear of a slight risk, cannot take apparently. Accordingly, the information safety that should build those who include criminal law to be controlled inside actively to face network environment ensures a system to control problem of network news safety. Criminal law regards a kind of standard as sexual method, its carry appliance has the characteristic of lag sex, and namely it is the behavior that jeopardizes a society in some normally below the case that has not been other law to adjust or cant be adjusted, as a kind of more mandatory adjustment the method appears. What use as a result of criminal law is penal method, so safe to network news problem, commit a crime to the computer especially for the problem, criminal law control is to provide most mandatory, severe measure most, it has the effect of a kind of safeguard and backing in whole law hierarchy of control. The development of current electron business affairs brings a series of challenges to criminal legislation. 1. Have extent of measurement of penalty and penal and phyletic inadequacy. Ought to undertake innovating to penal sort, introduce qualificatory punishment namely; OK also widely applicable belongings punishment and qualificatory punishment, confiscate all article that concern with crime, equipment namely, privative crime person is engaged in the qualification of some kind of some kind of profession, activity, add infliction as a kind, the accident of its deadline, can consider to prep according to the about privative politics right regulation in existing qualification punishment will decide. Prohibit for example any IsP(serve a provider) admit a criminal to perhaps prohibit the criminal is engaged in with all of computer science department direct and relevant profession waits. 2. The difficult problem that criminal faces administer. The network does not have national boundaries, make computer criminal can carry out the crime that crosses national boundaries easily. As the ceaseless development of Internet, the proportion that the crime that cross a state holds in all computer crime is higher and higher, brought criminal from this administer difficult problem. Our country criminal law is opposite very hard at present the comput