Электронная коммерция в России
Электронная коммерция в России
The problems of legal regulation of electronic
commerce in Russia.
Open
to everyone Internet appeared not long ago (in 1995) and straight away became
very popular among the representatives of commercial structures. It's obvious
that a wide interest for the Internet grows continuously. And it is not
surprising: the role of the Internet can hardly be overestimated. The Internet
being an open net is used as a multy-purpose channel for arranging deals and
selling goods and services. The use of open nets is risky because it is hard to
protect the information. But at the same time it is accessible and cheap and
this is important for commercial structures working on the market with plenty
of contestants. So the Internet has grown out of a fashionable plaything to one
of the business instruments.
Electronic
commerce and Internet-trade are not the same. Electronic commerce is a way of
concluding bargains via a connection of computers and it causes passing of
property or right of user from one party to another. It is thirty years old and
first sales on the Internet went through only in 1995. Internet-trade is just a
part of electronic commerce.
There
are two basic systems of electronic commerce: business-to-business (B2B) and
business-to-customer (B2C). Actually there can be also customer-to-customer
(C2C) or peer-to-peer, business-to-government and other schemes. The
representatives of the first system are corporative web-clients - firms and
companies, who use the Internet for making deals among themselves and for
payments without cash transfer. Eighty five per cent of deals are made in the
B2B sector and B2C accumulates only fifteen per cent of the money turnover.
Besides the retail trade on the Internet, the B2C sector includes making bank
operations without leaving home (the so-called "home banking"),
brokerage, insurance etc.
Electronic
business is a kind of enterprise when all business activity including sales,
marketing, financial analysis, payments, search for employees, support of
clients and partners are brought to the Internet.
Electronic
commerce has a great potential for growth. The most promising branches of
Internet economics are venture capitalism, project financing, advertisements,
home banking, selling software and books, delivery. Insurance is also a whole
host of the Russian Internet.
In
a word, we stand at the beginning of the era of new economics called Internet
economics or "the economics of the digital world", the time of
electronic business.
Making
deals on the Internet requires first of all legal regulation of electronic data
exchange. Two problems are associated with this. First, courts do not
recognise electronic documents as a proof of good will of the parties. Then it
is necessary to define the procedure of confirmation of documents'
authenticity. As we see these problems are closely tied together and in fact
they come to a necessity of passing an act on electronic signature. In some
countries, for example in Germany and the USA, such act is in operation. It's
common practice that the electronic data exchange is made according to an
agreement between the parties and not to legal imperatives. In case of a
dispute between the parties the court will apply to the text of the agreement
and examine the procedure of settling of the disputes. The agreement must
determine the party, which carries the burden of proof.
Legal
regulation is also necessary in the field of computer crimes fight. One of the
common e-commerce abuses is machination over electronic payments. Besides the
legal status of the so-called "web money" is not defined.
Technology
develops faster than law. Law is conservative by nature. It doesn't serve the
topic of the day. It is the goal of lawyers who must find the compromise. In
due course compromises will become the law. But nowadays judges aren't ready to
settle arguments between the participants of high-tech electronic commerce:
they don't have special knowledge and experience in this field. So they have to
consult experts and therefore be influenced by their opinion or they try to
reconcile the parties. The regulations of Internet-law are public and private
at the same time because they affect both public interests and those of
individual. Legal permission is used to regulate arranging deals and legal
imperative - in case of placing false or illegal information on the net.
The
basic principle of electronic commerce is that the parties cannot doubt the
legality and validity of the bargain only because it is concluded by electronic
means.
In
Russia there are no acts regulating even the most important issues of
Internet-trade. So we'd better study the experience of other countries. In 1995
the UN Commission for International Trade Administration Law (the UNCITRAL)
worked out a model act on legal aspects of electronic data exchange. This act
provides the same legal conditions for paper documentation and computer
information. The US legislator does not overregulate the Internet-trade by
means of law because the legal instructions will inevitably face the problem of
taking measures of compulsion. Therefore Congress and agencies left a lot for
the "electronic vendors" to decide. Such noncommercial organizations
as CommerceNET Consortium, Electronic Frontier Foundation or Council of Better
Business Bureaus fulfil the function of independent regulators of
Internet-trade.
As
soon as electronic commerce is very successful and having good prospects the US
government tries to provide good conditions for this part of the national
economics. It has even declared a three-year taxation moratorium for high-tech
companies. But nevertheless the US government has to raise the rate of interest
in order to restrain the Internet boom.
The
government's competence also includes the legal protection of minors using
Internet-trade opportunities, the defense of copyright, the private information
safety promotion. The role of the precedent in the regulation is high. These
and other questions by Congress and it has adopted Child Online Protection Act,
Digital Millenium Copyright Act and Children's Online Privacy Protection Act of
1998.
In
Russia there are no legal guarantees for interests of e- commerce participants.
Something must be done immediately: such a great amount of undecided questions
of legal regulation may lead to considerable financial losses for the companies
growing their business on the Internet. Being unregulated the questions of
taxation and protection of private information about customers may cause
conflicts with tax collectors or promote the violation of human rights,
guaranteed by the Constitution.
The
governments work in this field is logical, the experience of western countries
is widely used. Today we have the Project of the Federal Program of the
Electronic Trade Development. A special act on electronic commerce is being
developed. After the electronic business has begun to grow the legal base of
electronic commerce is being made in cooperation of the officials and the
businessmen. But a lot of problems still exist: we don't have any act on
electronic signature, so it is hard to prove the validity and authenticity of
electronic documents. Besides the Russian underlaw requires using traditional
paper documents when concluding electronic bargains because it is
"convenient". In fact the whole electronic data exchange is regulated
by the rules of Civil Code and two acts: the Act on Information and the Act on International
Information Exchange.
Let's
sum up. The Internet has become a universal business environment bringing
companies one to another and providing links with consumers. Activities in this
field of high tech require qualitative legal regulation. In this way it is
useful to apply the experience of the USA and other developed countries. Only
through skilful legal governing we can achieve effective and successful
electronic commerce that would not be just a waste of electrons.
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