Legal basis for regulating international electronic commerce. International legal regulation of electronic commerce International regulation of electronic commerce

Nesterov A.K. International electronic commerce // Nesterov Encyclopedia

International trade is expanding with the development of scientific and technological progress and new technologies, while the need for goods and services increases significantly every year, playing an important role not only in the development of world trade, but also in the development national economies individual countries. In this regard, the use of electronic commerce within foreign trade operations becomes relevant.

Benefits of international e-commerce

is a set of payments carried out using electronic payment systems and electronic document management transactions involving the sale and purchase of goods and services, which subsequently move between different countries.

The structure of e-commerce can be illustrated by the following diagram:

Benefits of international e-commerce:

1. The e-commerce system allows you to place orders and fulfill them as part of the implementation foreign trade, which significantly saves time, allowing you to use it for better and more complete customer service, regardless of the segment.
2. Quantitatively, the composition of operations does not change after the introduction of e-commerce systems, but the procedure is simplified through the use of electronic document management.
3. Customer service is much faster, as the processing of each order is accelerated.

Application of e-commerce in external economic activity contributes to the expansion of business geography on a global scale, providing the possibility of a global presence regardless of their geographical location. International trade is the international exchange of goods and services through their export and import.

There are currently quite a few a large number of electronic payment and settlement systems that operate internationally and are used in foreign trade activities, for example, Yandex.Money, PayPal, etc. However, banking systems are currently the most widespread as a form of electronic payments used in foreign trade activities, for example, NSPK, SWIFT, various remote banking systems.

Using e-commerce in international transactions

International practice of using systems for foreign trade operations indicates the presence of four fundamental aspects:

1. The legal basis of the transaction is an agreement.
2. Place and time of concluding a contract via the Internet.
3. Response form or electronic contract form.
4. Delivery of the subject of the transaction.

Currently, all countries recognize that the basis of a foreign trade transaction carried out using any form of electronic commerce is a supply, purchase and sale or service agreement. In this aspect, e-commerce becomes a conventional concept, and the legal system transfers the features of the legal regulation of commercial relations to related relations, while e-commerce is directly included in national jurisdictions, and the rights and obligations of the parties to the transaction are implemented regardless of the use of software and hardware.

The place and time of conclusion of the agreement is important for determining national legislation and the choice of court when resolving a conflict. This aspect of international electronic commerce in transactions is associated with direct designation. Formally, transaction participants use various technical means: email, web pages, etc. The offer is considered accepted from the moment the corresponding message is sent, but not when it is received. In practice, additional confirmation by all participants in the transaction is used; it can appear in the form of additional acceptances on the web page or directly indicated in the email. This issue is important in order to avoid misunderstandings between the parties regarding the nature of the proposals and the legal relations that will follow them.

The form in which the response is received is a consequence of the nature of the conclusion of the contract and is determined by the recognition of this form by the parties to the transaction. The response format is indicated in the text of the contract; it can act as a direct confirmation of the transaction, in the form of a conscious action, for example, making a payment according to the specified conditions, or using electronic signature.

Delivery of the subject of the transaction implies physical delivery of goods, delivery of goods in electronic form, remote provision of services, etc. Physical delivery of goods entails the need to pay customs duties, while goods supplied electronically are not subject to customs duties. Regardless of the subject of the transaction, payment is made in accordance with the concluded agreement using electronic payment systems.

The product specialization of international e-commerce includes four groups:

1. finished products;
2. cars and equipment;
3. raw materials;
4. services.

Currently, the Internet is a communication tool for interaction between entrepreneurs around the world, which makes the use of e-commerce an important aspect of foreign economic activity. The integrated effect of transforming trade transactions with goods and services into electronic form is manifested at all stages of foreign trade operations. A key factor in the intensification of the use of e-commerce systems in foreign trade operations has become the possibility of reducing the cost of concluding contracts using Internet communication capabilities.

In world practice, the following classification of e-commerce systems has developed:

1. Business – Consumer – B2C
2. Business – Business – B2B
3. Consumer – Consumer – C2C

In 2017, the share of transactions carried out using e-commerce systems accounted for about 35-40% of the total volume of trade transactions. Depending on the level of functioning of electronic trading systems and the share of their use in trading operations, the following gradation has been adopted

The use of e-commerce systems in international trade transactions is based on the following aspects:

1. Determination of the transaction price - depending on the cost of transportation, customs duties There will be different prices for buyers from different countries. Exporters can use the services of customs brokers for such purposes or create a foreign trade operations department;

2. Use of standard trade terms Incoterms - they distribute responsibility between the parties for paying the costs of transportation, insurance, and duties. With the exception of the delivery with duties paid option, all Incoterms require payment of all duties and taxes by the buyer upon arrival of the goods;

3. Payment – ​​depending on the e-commerce segment, participants can use various shapes payment. In the B2C segment, the main thing is the acceptance of payments using bank cards Mastercard, VISA, UnionPay, JSB, etc., including the use of services for processing such payments. For the B2B segment, the main form of payment remains bank transfer using electronic payment systems. In the C2C segment, payment using services is practiced;

4. Risk leveling – during a remote transaction and payment, the seller is exposed to a certain risk. The risk may be related to potential fraud or payment claims. The most difficult aspect of electronic trading is the issuing bank's demands to reverse the payment from the holding person. bank card. More than half of these claim payments involve fraud. The main factor in leveling the risk is the involvement of intermediaries in the electronic payment acceptance procedure;

5. Information support – exporters and importers are required to provide basic customs information government agencies And transport companies. The basis information support draws up a customs classification, with digital codes used to determine the applicable tariffs. Electronic sales require information support, including to determine the possibility of applying a preferential regime, free trade agreement, etc.;

6. Regulation of electronic commerce - based on the Convention on the Use of Electronic Communications in International Treaties (UNCITRAL). Initiatives to regulate cross-border e-commerce are summarized in the table below;

7. The use of an electronic signature acts as a guarantee of correct identification of the parties to the transaction, confirmation of authenticity and prevention of rejection of messages exchanged by the parties. At the international level, the mechanism operates on the basis of national electronic signature laws. Most countries have already passed relevant laws.

Development of e-commerce in the world

Considering the multifaceted nature of the use of e-commerce systems in foreign economic activity, the approach to them is ambiguous in different countries.

In the United States, they are lobbying for a scenario of waiving taxes and customs duties on some items of cross-border transactions carried out using e-commerce systems. This approach applies to products received through electronic communication channels. However, with regard to physical goods, it is proposed to maintain the current practice.

The EU is dominated by the principle of active government regulation electronic commerce at the international level, according to which a single document should be adopted on global communications in the field of electronic commerce and foreign economic activity. Recent legal proceedings against large American IT companies indicate that the EU does not intend to participate in eliminating taxation of products received through electronic communication channels.

Cross-border retail trade is actively developing in Japan using electronic channels communications. Retail transactions and distribution systems account for about 80% of all foreign trade activities carried out using e-commerce systems. In the B2B sector, the use of e-commerce systems for cross-border transactions is not developing, and their use is limited to electronic payment using banking customer service channels.

In China, the sphere of e-commerce is one of the priority areas for the development of foreign trade activities. E-commerce giants – AliExpress, Tao, XinTao, etc. China actively participates in committees and working groups related to the development of e-commerce at the international level. Feature Chinese model The development of electronic commerce at the international level is the conclusion of bilateral agreements with countries participating in trade relations, or the creation of integrated associations from several countries for which a single regime for carrying out trade operations using electronic commerce systems applies. China's ambitions to become a global leader in the use of e-commerce systems for cross-border trade transactions are supported by the compelling growth of Chinese online marketplaces, most notably AliExpress. The development and implementation of electronic commerce is considered by him as a means of ensuring a certain leap in the socio-economic, scientific and technical life of society.

The practice of individual companies is also of interest.

Alibaba Group owns the largest trading platform on the Internet, AliExpress.com, the Alibaba.com portal, Alipay’s own electronic payment system, as well as a number of related services. AliExpress is an online store focused on the sale of numerous sellers of their products to foreign buyers. Within of this project a mechanism for concluding a contract, payment, organizing delivery, as well as a mechanism for minimizing risks has been implemented. Alibaba.com is a B2B project, which is organized in the format of a trading platform for organizations.

Royal Dutch Shell– British-Dutch oil and gas company– has within its structure a special division, Shell Services International, which provides information support for international trade operations carried out using electronic communication means. The corporation has created a virtual network called Shell Wide Web (SWW), which is used to cover the needs of all forms of business practices that involve international trade transactions. Technical basis The network relies on standard communication protocols, which allows access to it with the appropriate permissions. In essence, the network is a tool for making business contacts between several counterparties and the main task is information and technical support for foreign trade operations. The network implements mechanisms for the electronic conclusion and confirmation of contracts that comply with the documents regulating this area.

Another large-scale project is the Siemens network. GEN (Global Engineering Network) brings together representatives of companies from European countries and is an electronic space for engineering knowledge. The network itself is positioned as a kind of platform where suppliers of components, components and potential consumers contact, who can use these products in their factories and in their products. The functionality of the network means that suppliers provide technical information about products, and potential customers select the most suitable components and components for them. Customers can then engage in development work and experimentation using these products at an early stage in their product design. This platform allows for the conclusion of a contract for the cross-border supply of products through electronic communication channels.

General Electric has implemented a project that combines elements of a trading platform and an electronic trading system to ensure the functioning of the tendering system. The main feature of this approach is technological support for concluding a contract in electronic form between companies located in different countries, as well as a mechanism financial security fulfillment of the contract in the form of a guarantor, which is this site.

Hewlett Packard uses its own corporate one as information support for cross-border contracts. This is the simplest option for using electronic communications in foreign trade.

The use of e-commerce by Russian enterprises for international transactions

One of the dynamically developing areas of international e-commerce is the sphere of foreign trade operations between Russia and China. In 2009, the first project focused on e-commerce between Chinese and Russian companies was launched. The project format is a trading platform that allows enterprises from both countries to enter into contracts for the supply of products. The trading platform was organized in the city of Suifenhe and is focused on trade and service interaction within the framework of foreign trade operations. The main task was to create an electronic commerce system with related support based on the physical trade checkpoint of Heilongjiang Province.

By 2017, the main direction of the platform was the operation of 8 thousand online stores with Russian goods, focused on the domestic market of China. The physical location of the trading platform is due to the concentration of significant volumes of Russian goods in Suifenhe, where the largest wholesale market Russian goods. As a result, e-commerce in a small Chinese border town has become the basis for the Internet+ model Russian goods". Wherein Russian companies supply their products using the Suifenhe commercial trading and service platform, and Chinese counterparties purchase Russian goods wholesale, then selling them at retail in the Chinese domestic market through various e-commerce systems.

Distinctive features this approach:

• government guarantees,
• secure electronic payment system,
• complete customs clearance through the Internet,
• full logistics calculation,
• information support from the Suifenhe City E-Commerce Department and access to government databases.

In 2016, the electronic trading platform DAKAITAOWA (translated from Chinese as “open the nesting doll”) was launched. DAKAITAOWA.COM is focused on supplying Russian food products to China. The structure of the e-commerce system for foreign trade transactions includes:

• marketing market research;
• searching and establishing business contacts in Russia and China;
• export-import clearance;
• certification of Russian food;
• information support for logistics.

The advantage of the platform is that there is no need to build your own trade infrastructure and minimal costs for exporting and promoting products.

The main advantage of the service is the protection of counterparties from counterfeits. At the same time, there are no geographical restrictions on supplies to China, since distribution processes are carried out by First Russian Cross-Boarder Trading (Shanghai) Limited. Key directions of this e-commerce system

• Shanghai,
• Beijing,
• Chongqing,
• provinces of Jiangsu, Zhejiang, Henan, Xinjiang Uyghur Autonomous Region and Shandong.

The platform is integrated with electronic customs ports of China, with warehouse and transport logistics, Chinese payment systems, payment system of the People's Republic of China. Integration with electronic platforms JD, TMALL Alibaba Group and Suning is planned.

The platform is operated by two Russian companies:

1. LLC "Russian Export" (Moscow, Russia) - acts as an exporter, searching for manufacturers and supporting them in Russia.
2. First Russian Cross-Boarder Trading (Shanghai) ltd (Shanghai, China) - acts as an importer and interacts with counterparties in China.

In the field of wholesale supplies of petroleum products, there are several electronic trading systems. The electronic trading platform eOil.ru in this format is operated, in particular, by Gazprom (using the technological solution of Information Systems LLC) and Gazprombank - ETPGPB.ru, as well as others. The functions of electronic trading systems include the sale of petroleum products at fixed prices on terms agreed with the sales representative or as a result of auction trading. Distinctive features of Russian sites in this area from foreign models:

• fully electronic document management is used;
• the conclusion of the contract is verified by an electronic signature;
• the operations performed are documented, reports are generated according to the regulations;
• systems are closely integrated with information systems companies;
• the principle of auction and accessibility of trading has been implemented;
• reliability of operations is ensured by the security service and financial guarantees for the fulfillment of obligations;
• the ability to buy petroleum products at any destination station.

The optimal e-commerce model for international trade transactions

Assessing the effectiveness of using e-commerce systems in international operations can rely on various sources of data to judge the effectiveness of the e-commerce project. At the same time, depending on the format of the e-commerce system, the sources used will differ in content and the data provided. You can use the data source selection schema for analysis when implementing for international operations.

Scheme for selecting a data source for assessing the effectiveness of an e-commerce system for foreign trade transactions

Taking into account the considered options for organizing an e-commerce system for foreign trade activities, the most promising implementation seems to be the choice of an e-commerce system in the form of an online store or system e-procurement, which corresponds to the second type in the data source selection scheme.

In accordance with the functionality, the second type of e-commerce systems can be used for the following purposes:

1. Automation wholesale trade– suitable for large companies with a significant number of corporate clients. The implementation of this approach can significantly reduce the time and cost of a trade transaction. The main advantage: simplification of the process of concluding a supply contract in electronic form from familiarization with products to payment. As a result, the number of transactions and profitability of sales increases. Additional features:

• self-updating showcase from the database;
• storing information about customers;
• functionality of individual price lists;
• display of the real state of the warehouse;
• control of any financial and trading operations

2. Foreign trade activities in the B2B sector - allows you to automate commercial processes using electronic communication tools. In the corporate sector, a large number of clients are not interested in establishing personal contacts with employees of the selling company; the most important thing for them is reasonable cost and simplicity of the ordering procedure. B2B clients want to immediately see the full cost of the order, including delivery. Corporate client prefers to consistently use the e-commerce system while constantly placing standard orders. There is always a part potential clients who do or will do only simple small orders. Such orders can occupy a significant share of the company's turnover and be profitable if the costs of processing them are reduced and the number of such orders becomes significantly larger. Depending on the industry, the share of such clients ranges from 25 to 50%. Accordingly, the use of e-commerce systems in this case is justified in relation to the following groups of clients:

• new customers with one simple order;
• regular customers with small orders and/or orders with big amount positions;
• large clients with regular large orders with varying numbers of items.

3. Retail e-commerce – the effectiveness of this approach, focused on external markets, is proven by the experience of AliExpress. This may include all categories of goods that can be ordered online and delivered by delivery services.

conclusions

E-commerce systems are being implemented by most enterprises interested in maintaining economic relations between suppliers and consumers and are designed to solve sales problems for sellers and logistics for buyers. First of all, the implementation of e-commerce systems in foreign trade activities is aimed at automating labor-intensive routine processes that take up a lot of employee time: accepting orders, agreeing on conditions, and other types of exchange of commercial information.

Modern foreign and Russian practice of implementing e-commerce projects in foreign trade activities corresponds to achieving maximum effect through the integration of e-commerce systems with enterprise activity planning and supply management systems. In this case, the buyer receives a simple and fast ordering mechanism, and the seller receives additional tool increasing the direct sales network and customer retention. The fundamental factor in the implementation of e-commerce systems is the creation of a comprehensive alternative to existing sales channels and optimization of commercial processes.

As part of the study, based on the results obtained, the choice of the optimal approach to the organization and implementation of an e-commerce system for the implementation of foreign trade operations is substantiated. Nominally, the implementation of this direction is an intermediate form between classic online stores and an electronic trading platform. The implementation of an e-commerce system correlates with the optimization of business processes and increased efficiency of interaction with consumers. At the same time, the introduction of an e-commerce system aims to create a traditional e-commerce model. Due to this, it is planned to increase operational efficiency, eliminate time spent on routine operations in order to use time more efficiently, directing it to work with consumers and development. Formation effective channel sales through the implementation of an electronic procurement system allows to achieve optimization of foreign trade activities.

Thus, the study shows that the introduction of an e-commerce system into the foreign trade activities of enterprises in order to optimize it is cost-effective and appropriate, since it corresponds to current trends in the development of world trade and meets modern conditions foreign trade activities in general.

IN Russian Federation legal regulation of relations in the field of electronic document management and e-commerce is carried out in accordance with the Civil Code of the Russian Federation, the Federal Law "On Information, Informatization and Information Protection", "On Communications", "On Electronic Digital Signature", "On Participation in International Information Exchange" and others and other regulatory legal acts adopted in accordance with them.

In 1996, the UN General Assembly adopted the Model Law on Electronic Commerce, developed and approved by the UN Law Commission international trade(UNCITRAL) and guidance on its application. This Law applies to any type of information in the form of a data message used in the context of trading activities. The term "data message" means information generated, sent, received or stored by electronic, optical or similar means, including electronic data interchange, email, telegram, telex or telefax. The basic legal principle of electronic commerce is the following: parties to an electronic transaction cannot question it solely on the grounds that it is concluded and often executed (as in financial sector) electronically and it is not based on traditional paper document flow, accompanied by a traditional handwritten signature.

In 2002, the President of the Russian Federation signed the Federal Law "On Electronic Digital Signature", which provides for legislative regulation of relations arising regarding the conclusion of transactions using an electronic digital signature (EDS).

The Law on Electronic Digital Signature contains the following main provisions:

• - all copies of the file signed with an electronic digital signature have legal force
• - files signed with an electronic signature have evidentiary value in court on a par with paper documents.

An electronic digital signature is recognized as equivalent to a handwritten signature of an individual if it is verified with a public key and the certificate is valid at the time of signing and the file has not been changed. Persons who illegally use the digital signature of another person bear criminal, civil and administrative liability. Using an electronic digital signature allows you, without leaving your home or office, to safely and securely carry out transactions for the purchase and sale of property, to assert your rights in the justice authorities by corresponding by e-mail; use the Internet to simplify the submission procedure tax reporting to the tax authorities.

Speaking about the issues of taxation of transactions made on the Internet, it is worth noting that they are still outside the zone of legislative regulation and control by states due to the inapplicability on the Internet of certain legal categories that have a spatio-temporal reference, for example, the concepts of “permanent establishment” " and "sale of goods, works and services".

According to Russian laws, the crossing of goods " electronic border" is regulated by customs legislation; however, there is not even a method for tracking this type of import. At the same time, the international community believes that new taxes should not be introduced in relation to electronic trade transactions.

General provisions and legal basis of electronic commerce

§ 1. Formation of the legal framework for electronic commerce in Russia and foreign countries

§ 2. Legal concept, content of types of electronic commerce in the theory and legislation of Russia and foreign countries.

§ 3. Conflict of laws regulation of electronic commerce.

International legal regulation of electronic commerce (UNCITRAL model laws and the UN Convention of 1996-2005).

§ 1. UNCITRAL Model Law on Electronic Commerce 1996

§ 2. UNCITRAL Model Law on Electronic Signatures 2001

§ 3. United Nations Convention on the Use of Electronic Communications in International Treaties, 2005

National legal regulation of electronic commerce

§ 1. North American model of legal regulation of electronic commerce.

§ 2. Model of legal regulation of electronic commerce in the countries of the European Union

§ 3. Legal regulation of electronic commerce in Russia.

Recommended list of dissertations

• Civil regulation of e-commerce in Russia: modern legal model 2013, candidate of legal sciences Saliev, Ildar Rustamovich

• Civil regulation of electronic commerce 2007, Candidate of Legal Sciences Kostyuk, Irina Viktorovna

• International legal regulation of electronic communications in the European Union 2010, candidate of legal sciences Shishlov, Alexander Alexandrovich

• Legislative regulation of the use of digital signatures in countries with developed market economies: comparative legal analysis 2011, candidate of legal sciences Shchegoleva, Svetlana Vyacheslavovna

• Form in international civil and commercial circulation 2007, Candidate of Legal Sciences Grekova, Isabella Leonidovna

Similar dissertations majoring in “Civil Law”; business law; family law; international private law", 12.00.03 code VAK

• Civil regulation of the use of electronic digital signatures in the field of electronic data exchange 2001, candidate of legal sciences Manshin, Sergey Viktorovich

• Civil regulation of commercial activities (trade) 2010, candidate of legal sciences Kotova, Elena Anatolyevna

• Legal regulation of the provision of Internet services 2002, candidate of legal sciences Petrovsky, Stanislav Vitalievich

• Formation and development of the concept of “electronic document” in foreign and Russian legislation 2004, Candidate of Historical Sciences Kukarina, Yulia Mikhailovna

• Legal problems of state regulation of foreign trade in goods: International legal aspect 1998, candidate of legal sciences Shishaev, Alexey Ivanovich

List of references for dissertation research Candidate of Legal Sciences Minenkova, Natalya Vladimirovna, 2008

Please note that the scientific texts presented above are posted for informational purposes only and were obtained through original dissertation text recognition (OCR). Therefore, they may contain errors associated with imperfect recognition algorithms. There are no such errors in the PDF files of dissertations and abstracts that we deliver.

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Currently, the use of modern means of communication, in particular the Internet, for concluding international commercial contracts. However, legal regulation in this area lags behind the needs of business practice. Adoption UNCITRAL Model Law on Electronic Commerce (December 10, 1996), recommended by the UN General Assembly to states for the adoption of relevant national laws, was therefore of great importance. On its basis, laws were developed in countries such as Australia, Italy, France, Slovenia, etc. Although the Model Law is called electronic commerce, the concept of electronic commerce itself is not included in it. The law essentially contains a set of rules for the transfer of information in the form of electronic data interchange.

The purpose of the Model Law on Electronic Commerce is to provide national legislators with rules governing the removal of legal obstacles to the development of electronic document management. This Law can also be used as a means of interpreting international conventions, which contain rules on the mandatory written form of certain documents. The Model Law makes it possible to adapt domestic legislation to the use of developing modern means of communication, without requiring a complete abandonment of the use of paper documents.

The Law contains basic rules for the electronic exchange of information not only when concluding contracts. According to Art. 1 of the Law it applies to any type of information in the form of a data message used in the context commercial activities. "Data message" is defined in Art. 2 as information prepared, sent, received or stored by electronic, optical or similar means, including, but not limited to, electronic data interchange, email, telegram, telex or telefax. "Electronic Data Interchange" means the electronic transmission from one computer to another of information using an agreed standard for structuring information. "Compiled" data message is any person by whom or on whose behalf the data message was sent or prepared for storage, if any, with the exception of an intermediary who provides services for sending, storing, receiving information. "Addressee" recognizes the person (other than the intermediary) who, according to the intention of the originator, should receive the information.

Electronic information exchange poses a number of problems that the Model Electronic Commerce Law addresses to a certain extent. In particular, it is necessary to resolve issues of recognizing the legal force of information transmitted via the Internet, ensuring the integrity and safety of information, the need to protect against unauthorized access to information and changing it, identifying the sender’s signature, etc. The law establishes that information cannot be lacks legal force, validity or enforceability solely on the basis that it is in the form of a data message (Article 5). A similar rule is established in relation to offer and acceptance, which can be made using a data message (Article 11). The model law equalizes legal regime information compiled in writing and information transmitted in the form of a data message, if the information is available for subsequent use (Article 6). In subsequent articles this provision in the Law is developed. A data message is equivalent to the true form of information if two conditions are met: 1) there is reliable evidence of the integrity of the information from the time it was first prepared in its final form as a data message or otherwise; 2) if it is necessary to present information, this information can be demonstrated to the person to whom it must be presented (Article 8).

If the law requires the preservation of certain documents, records or information, this requirement is satisfied when storing the data message, but three conditions must be met: 1) the information contained in the data message is available for subsequent use; 2) the data message is retained in the format in which it was generated, sent or received, or in a format in which it can be shown that the information generated, sent or received is accurately represented; 3) information is stored, if it exists, that makes it possible to establish the origin and purpose of the data message, as well as the date and time of its sending or receipt.

The Model Electronic Commerce Law establishes rules for determining the time and place of origin and receipt of a data message. Unless otherwise agreed, the sending of a data message occurs at the moment when it enters an information system outside the control of the sender, and the place of sending is considered to be the location commercial enterprise compiler. The Model Law provides three options for determining when information is received. Unless otherwise agreed between the originator and the addressee, if the addressee has specified an information system for the purpose of receiving the data message, the moment of receipt of the data message is determined by: a) the moment when the data message arrives at the specified information system; b) if the data message is sent to an information system that is not specified by the addressee, at the moment when the data message is retrieved by the addressee from the system; c) if the addressee has not indicated the information system, receipt occurs at the moment when the data message arrives at any information system of the addressee. The place of receipt of the data message is considered to be the location of the addressee's commercial enterprise, and if there are several such commercial enterprises, then the place that is directly related to the main transaction, or the location of the main commercial enterprise (Article 15).

One of important issues issues addressed in the Model Electronic Commerce Law is the issue of electronic signature and person identification. A person’s signature in the form of a data message (electronic signature) is recognized as valid if a reliable method of identifying the person is used and is consistent with the purpose for which the data message was transmitted and if this person agrees with the information contained in the data message (Article 7). These rules were developed in UNCITRAL Model Law on Electronic Signatures (Vienna, July 5, 2001), the adoption of which served as an important step in the unification of international legal norms in the field of international trade.

The law defines an electronic signature as data in electronic form that is contained in, attached to, or logically associated with a message and that can be used to identify the signatory in connection with the communication of the data and to indicate that the signatory agrees to the information contained in the message (v. 2).

Like the Model Electronic Commerce Law, this Model Electronic Signatures Law gives legal effect to an electronic signature and makes it equivalent to a person's handwritten signature on paper.

The law specifies the conditions the presence of which allows an electronic signature to be considered reliable. An electronic signature must satisfy the following requirements: a) the data for its creation is associated with the signatory and not with another person. Signatory means a person who has the data to create a signature and acts on his own behalf or on behalf of the person he represents; b) at the time of signing, the data was under the control of the signatory; c) any change made to the electronic signature can be detected; d) any change in the integrity of an electronic document is “detectable”.

The technological process of producing an electronic signature is regulated by national legislation with the help of special certificates and procedures. The Law on Electronic Signatures establishes an important rule on the recognition of an electronic signature created in one state on the territory of other states if it provides a substantially equivalent level of reliability (Article 12).

United Nations Convention on the Use of Electronic Communications in International Agreements(New York, November 23, 2005) (Further – Convention) is based on previous experience in developing rules in the field of electronic document exchange. As noted in the literature, the Convention is an example of universal unification, which creates conditions for involving a larger number of states in trade turnover. To date, the Convention has been signed by China, Lebanon, Madagascar, Singapore, Sri Lanka, Senegal, Paraguay, Russia, etc. The preamble of the Convention states that it was adopted to eliminate problems arising due to uncertainty regarding the legal significance of the use of electronic communications in international agreements that impede international trade.

The Convention applies to the use of electronic communications in connection with the conclusion or performance of contracts between parties whose places of business are in different States.

This Convention, like the conventions already discussed, does not apply to contracts concluded for personal, family or household purposes, i.e. The Convention applies to business contracts. The basic concepts used in the Convention have a content similar to the corresponding concepts of the Model Law on Electronic Commerce. At the same time, it contains new concepts and rules. So, in addition to the “data content” in Art. 4 of the Convention defines the concept of electronic communication, which means any message that the parties transmit using data messages. Art. 8 provides that a communication or contract cannot be invalidated or enforced solely on the basis that it is in the form of an electronic message. A message or agreement drawn up on paper is equal in legal force to an electronic message if the information contained in it is available for subsequent use. The issue of electronic signatures is resolved similarly to the rule in the Model Law on Electronic Commerce.

The rules regarding the time and place of sending and receiving electronic messages are formulated somewhat differently in the Convention.

The time of sending of an electronic message is the moment when it leaves the information system under the control of the sender, and if the electronic message has not left the information system, the moment of receipt of the electronic message, and the place of departure is the location of the originator's place of business.

The time of receipt of an electronic message is the moment when it becomes possible for it to be retrieved by the addressee at the email address specified by the addressee. The Convention establishes that the possibility of retrieving an electronic message by the addressee is created at the moment when it arrives at the addressee's email address. The place of receipt of an electronic message is the location of the commercial enterprise (Article 10).

The rule on invitations to make offers is new. In accordance with Art. 11 of the Convention, an offer to enter into a contract made through one or more electronic messages, which is not addressed to specific parties, but is publicly available to parties using information systems, including offers that use interactive applications for placing orders through such information systems, should be considered an invitation present offers unless it clearly states the intention of the party making the offer to be bound if accepted.

Of interest and intended for the future is the provision on concluding a contract by an automated system, sometimes called an “electronic agent” in the literature, without the intervention of an individual.

A contract formed as a result of the interaction of an automated messaging system and any individual or as a result of the interaction of automated messaging systems shall not be invalidated or enforceable solely on the basis that no individual has reviewed or intervened with respect to each individual transaction. carried out by automated message systems, or concluded as a result of a contract (Article 12).

A question has also been developed about the consequences of detecting an error in an electronic message. When committing an individual errors when entering information into an electronic message that is the subject of an exchange with another party's automated message system, and this automated system message does not provide that person with the opportunity to correct the error, such person or the party on whose behalf that person acted has the right to withdraw that part of the electronic message in which the error was made when entering information. However, revocation of an email is permitted in limited cases:

• 1) if the sender of the message notifies the other party about the error as soon as possible after discovering the error; and if
• 2) this person or the party on whose behalf this person acted did not use the goods or services received from the other party, if any, and did not receive any material benefit or value from them (Article 14).

Thus, the creation of unified standards in the field of electronic document management makes it possible to significantly remove legal barriers to the development of international trade, increase the efficiency of the process of negotiating and concluding international commercial agreements, and ensure the possibility of their conclusion “on line”, thereby significantly reducing transaction costs .

However, the considered international legal acts do not regulate all significant issues in the field of electronic commerce. Russian legislation plays a major role in the legal regulation of these relations.

Considering becoming Russian legislation in the field of electronic document management, it is necessary to note, first of all, the Concept of the use of information technologies in the activities of federal government bodies until 2010, approved by Decree of the Government of the Russian Federation dated September 27, 2004, until 2010, one of the tasks of which is the development of a system of certification centers in the field of electronic digital signature and electronic interaction environment. In addition, the Federal Target Program " Electronic Russia(2002–2010)", which provides for a number of activities aimed at improving legislation and the system of government regulation in the field of information and communication technologies. One of the goals of the Program is to create the conditions necessary for widespread use in commodity markets Russian e-commerce mechanisms that facilitate the accelerated promotion of goods and services. The total budget savings after implementing the e-commerce system will be about 15%. Measures envisaged by the Program to accelerate the spread modern methods transfer of information and the introduction of electronic document management in the field of entrepreneurship will reduce the time for concluding transactions and will lead to a reduction in trade costs.

The Internet is a special public space that exists outside of space and develops according to its own laws. When developing draft laws and other regulations, it is necessary to take into account the special nature of the Internet. Legal regulation of relations in the field of information technology should be based on the right of everyone, enshrined in the Constitution of the Russian Federation (Part 4, Article 29), to freely search, receive, transfer, produce and distribute information by any legal means. This means that the government should not establish administrative barriers that prevent access to the Internet.

IN Federal law dated July 27, 2006 No. 149-FZ “On information, information technologies and information protection” for the first time defined a number of concepts and provided basic rules for the use of the information and telecommunications network.

First of all, this Law defines an information and telecommunications network as a technological system intended for transmitting information over a communication line, access to which is carried out using computer technology (Part 4, Article 2). The law provides that the use of the network on the territory of the Russian Federation is carried out in compliance with the requirements of legislation in the field of communications, the Law and other regulations. The transfer of information through the information and telecommunications network is carried out without restrictions, subject to compliance with the requirements established by federal laws for the dissemination of information and the protection of intellectual property (Part 5 of Article 15). Thus, the legislator recognized the method of transmitting information via the network as legal.

An electronic message is defined in the Law as information transmitted or received by a user of an information and telecommunications network. It is easy to notice that, unlike the Convention on the Use of Electronic Communications in International Treaties of 2005, the Law in question is designed to regulate relations by transmitting information using not all means of modern types of communication, but only with the help of computer technology.

An electronic document is an electronic message signed with an electronic digital signature or another analogue of a handwritten signature. The law recognizes equal legal force of an electronic document and a document signed with a handwritten signature. This conclusion can be drawn from the interpretation of Part 4 of Art. 11 of the Law, which provides that for the purpose of concluding civil contracts or formalizing other legal relations in which persons exchanging electronic messages participate, the exchange of electronic messages, each of which is signed with an electronic digital signature or other analogue of the handwritten signature of the sender of such a message in in the manner established by federal laws, other regulatory legal acts or agreement of the parties, is considered as an exchange of documents.

The law establishes an equal legal regime for economic and other activities that use the information and telecommunications network and activities that do not use the network. In paragraph 3 of Art. 15 establishes that the use of a network in economic or other activities on the territory of the Russian Federation cannot serve as a basis for establishing additional requirements or restrictions regarding the regulation of these activities, as well as for non-compliance with the requirements established by federal laws.

The Law in question is general character, and does not aim to fully regulate relations related to the conclusion and execution of transactions through the use of the network. But some provisions of the Law directly relate to the issues of concluding contracts in electronic form. Thus, it stipulates that federal laws may provide for mandatory identification of individuals and organizations using the network when carrying out entrepreneurial activity. In this case, the recipient of an electronic message located on the territory of the Russian Federation has the right to conduct a check to establish the sender of the electronic message, and in cases established by federal laws or an agreement of the parties, he is obliged to conduct such a check (Part 4 of Article 15).

Currently, detailed rules for using the Internet are contained in Federal Law No. 94-FZ of July 21, 2005 “On placing orders for the supply of goods, performance of work, provision of services for state or municipal needs” and by-laws adopted in accordance with it . Thus, the Government of the Russian Federation, the highest executive bodies of state power of the constituent entities of the Russian Federation, and municipal authorities have determined the official printed publication, as well as the corresponding official website on the Internet for posting information about placing orders. Order of the Government of the Russian Federation dated February 20, 2006 No. 229-established the address of the official website of the Russian Federation on the Internet and designated the Ministry of Economic Development of Russia as the authorized federal body executive power for maintaining the specified official website. Decree of the Government of the Russian Federation dated March 10, 2007 No. 147 established the procedure for using the specified site and the requirements for technological, software, linguistic, legal and organizational means of ensuring the use of official sites. Specified regulations are of particular interest because they are one of the first regulations governing relations on the use of the Internet for the purpose of concluding contracts. The Law and Decree of the Government of the Russian Federation stipulate that information posted on official websites should be available for review by users without charging a fee.

It is important to note that this decree of the Government of the Russian Federation defines what should be understood by ensuring the protection of information and provides for various protection measures. Under ensuring information security refers to the activities of officials of authorized bodies to ensure the safety of information, prevent and suppress attempts to destroy it, unauthorized modification and copying, as well as violation of the normal regime of information processing, including technological interaction with other information systems. The information protection measures provided for by this act include both technical, organizational and legal. In particular, the following is provided: 1) the use of an electronic digital signature or other analogues of a handwritten signature; 2) use of hardware and software anti-virus protection; 3) management electronic magazines accounting for operations performed using software and technological tools for maintaining official websites; 4) restriction of access to technical means and office premises; 5) daily copying of information to backup media; 6) control over the integrity of information and its protection from unauthorized modification, copying and destruction; 7) storage of information for 10 years.

General provisions on concluding contracts through the use of various means of communication are provided for in the Civil Code of the Russian Federation. A condition for compliance with the requirements of the Civil Code of the Russian Federation for the written form of an agreement is the ability to reliably establish that the document comes from a party to the agreement (clause 2 of Article 434), i.e. the ability to identify the person who signed the contract. Identification of a person is carried out by his handwritten signature. In addition, the Civil Code of the Russian Federation provides for the use, when making transactions, of a facsimile reproduction of a signature using mechanical or other copying means, as well as an electronic digital signature or another analogue of a handwritten signature in the case and in the manner prescribed by law, other legal acts or agreement of the parties (clause 2 Article 160).

Relations regarding the creation and use of an electronic digital signature are regulated by the Federal Law of January 10, 2002 No. 1-FZ “On Electronic Digital Signature”.

Since the term “electronic commerce” is used both in international documents and in Russian legislation, the question arises of how it should be understood. The Model Law on Electronic Commerce, as already stated, does not clarify this concept.

In practice, e-commerce often refers to the conclusion of sales and purchase agreements through the use of the Internet. However, this use of the electronic network is carried out in different ways. Thus, in a number of cases, the supplier and buyer enter into a supply agreement in ordinary written form. Based on the concluded contract, orders for the supply of specific batches of goods are issued in electronic form. When concluding contracts via the Internet, some of the terms of the contracts can be determined in the traditional way. To pay for supplied goods, both regular and electronic payments can be used. It should be noted that electronic payments are still rarely used. Therefore, the question arises what kind of agreement can be considered an electronic purchase and sale transaction. This issue must be resolved in the Federal Law "On Electronic Commerce", the adoption of which is necessary in the very near future.

It seems that an electronic trade transaction should be considered a transaction concluded and executed using information technology. In this case, an electronic purchase and sale transaction will be recognized as an agreement concluded through the exchange of electronic documents, including ordering goods, payment, organization of delivery, carried out through the use of electronic means and information technologies that ensure the transfer of ownership of goods from the seller to the buyer. Accordingly, electronic commerce should now be understood as a way of concluding contracts through the use of information and telecommunications. In its perfect form, e-commerce is the process of accepting orders, concluding transactions, making payments for them, and managing the delivery of goods using information technology operations.

For the full functioning of electronic commerce, it is necessary to resolve many more issues and problems related to the participation of foreign legal entities in transactions, the protection of transmitted information from unauthorized access, etc. For this purpose, appropriate legislative and other regulatory legal acts should be adopted. When developing domestic regulations, it is useful to take into account international experience, in particular, the Model Law on Electronic Commerce and the 2005 Convention.

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