A transaction concluded using online platforms as a legal phenomenon in the Russian Federation and the People's Republic of China
This article examines the legal nature of transactions concluded using online platforms. The main difference between traditional transactions and transactions concluded using online platforms is revealed. The subject of this article is an analysis of the current state of legislation on the issue of transactions concluded on the Internet information and telecommunications network. The author compares the legal regulation of this form of transactions in the Russian Federation and the People's Republic of China. The main problem in the legislation of the Russian Federation is analyzed. Special attention is paid to the moment of conclusion of this form of transactions (contracts). As methods of scientific cognition, the author used both general scientific methods of synthesis and analysis, generalization, and legal techniques and tools, in particular the method of comparative jurisprudence. The relevance of the research topic is explained by the insufficient knowledge and weak legal basis of this form of transactions.
Keywords: transaction, Internet, electronic signature, electronic document, e-commerce, PRC, the moment of conclusion of the contract.
With the development of the global information and telecommunications network Internet (hereinafter referred to as the Internet) and e-commerce, it has become more popular to make transactions using online platforms. Accordingly, this form of transactions has had a huge impact on traditional transactions.
According to the latest data on the Sputnik News website <1>, the volume of Russian commodity transactions using AliExpress online platforms is growing rapidly: sales of products in Russia increased by 126% in the first half of the year, orders - 5.5 times more. The number of Russian sellers increased by 75,500 people, increasing by 172%.
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<1> AliExpress Russia (Aliexpress): results of the first half of 2021
In this regard, the creation of effective legal regulation on legal relations in transactions concluded using online platforms is particularly relevant.
In addition, according to the latest data from UNCTAD "Assessment of global e-commerce in 2019 and a preliminary assessment of the impact of COVID-19 on online retail in 2020" <2>, the share of global online retail sales in total sales increased from 16% in 2019 to 19% in 2020. Global e-commerce sales Commerce jumped to $26.7 trillion in 2019, which is 4% more than in 2018. This increase includes sales between enterprises (B2B) and sales to consumers (B2C), which is equivalent to 30% of global GDP in 2019.
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<2> Assessment of global e-commerce in 2019 and a preliminary assessment of the impact of COVID-19 on online retail in 2020.
Three of the top five B2C e-commerce platforms are from China. Obviously, China is the fastest growing country in this area. Let's consider the experience of China for conducting a comparative study.
To identify the main signs of transactions concluded using online platforms, consider as an example the purchase of goods and services by an individual or legal entity in an online store. The following signs appear in this transaction: the buyer commits actions aimed at achieving such a legal result as establishing ownership of property or receiving services; the second essential feature of these transactions is a special form of fixing the will of the participants. However, as provided by art. 158 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) <3>, it is necessary to find out how these rules function when making transactions via the Internet. In modern Russian legislation, there are no norms regulating the procedure for making transactions through information and telecommunication means, in particular the Internet. As a result, there is extensive judicial practice on disputes arising from transactions on the Internet <4>.
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<3> The Civil Code of the Russian Federation (part one) of November 30, 1994 N 51-FZ (ed. from 02/25/2022).
<4> Dobrokhotova A.V. Problems of civil law regulation of electronic transactions // Young Scientist. 2020. N 10. pp. 32-34.
It should be noted that the main difference between traditional transactions and transactions concluded using online platforms is in the form of an expression of will. And the expression of will is the essence of the deal itself. In this regard, the form of expression of will has become one of the main features of transactions concluded using online platforms.
The expression of will on the Internet can be expressed in various ways, for example, by pressing the appropriate computer button, which is unambiguously defined as making a transaction by conclusive actions and is regulated by the provisions of Article 158 of the Civil Code of the Russian Federation <5>. At the same time, when the computer buttons are pressed, information is processed and transmitted in the form of electrical signals, electromagnetic pulses, etc., which should be unambiguously interpreted as an electronic document <6>.
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<5> See: paragraph 2 of Article 158 of the Civil Code of the Russian Federation: "A transaction that can be made orally is considered to be completed even if the person's will to make a transaction is evident from the behavior of the person."
<6> See: Federal Law No. 149-FZ of July 27, 2006 (as amended on 12/30/2021) (with amendments and additions, intro. effective from 01.01.2022) "On information, information technologies and information protection".
In addition, when making traditional transactions, the parties - regardless of whether they communicate face to face or use a phone, fax or other - usually have relatively greater opportunities to understand each other, thereby confirming their identity and qualifications. However, the situation is different for transactions concluded using online platforms: since the computer network is an open virtual world, anyone can use a fictitious name, identity and address, as a result of which it is difficult to confirm the identity of the parties, and this also affects the exercise of the rights and obligations of the parties and their trust in the security of transactions made on the Internet <7>.
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<7> Fan Guoqiang, Yang Jiaqing. Issues of contract law in electronic commerce // Journal of Hunan University of Business. 2002. N 6. P. 121. .
Such false identification may be caused by the fact that participants in transactions via the Internet intentionally avoid the responsibility they should bear, and may also be computer hackers using technology to steal other people's personal information and use it for fraudulent purposes.
It also happens that, from a security point of view, participants do not want to make transactions on the Internet using their personal data in order to avoid leakage of personal information and impact on their privacy. In any case, such situations will affect the identification of the participants in the transactions. Currently, an easier way to confirm the identity and qualifications of participants is to set a password or call back for confirmation, and a more convenient way is to use an electronic signature.
An important milestone in the Russian legislative regulation of digital rights and electronic transactions should be considered the adoption of Federal Law No. 34-FZ dated March 18, 2019 "On Amendments to Parts One, Two and Article 1124 of Part Three of the Civil Code of the Russian Federation" (hereinafter - Federal Law No. 34-FZ) <8>. Let's take a closer look at these changes.
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<8> Federal Law No. 34-FZ of March 18, 2019 "On Amendments to Parts One, Two and Article 1124 of Part Three of the Civil Code of the Russian Federation".
First, there is a new article - 141.1, which enshrines the concept of digital rights. These are recognized as "binding and other rights specified in the law, the content and conditions of which are determined in accordance with the rules of an information system that meets the criteria established by law." It can be concluded from this definition that this norm is still declarative. The specifics of the types of digital rights should be established by a separate law. Also in accordance with the new version of art. 160 the written form of a transaction is equivalent to making transactions using electronic or other technical means, if in this regard the content of the transaction can be reproduced invariably on a tangible medium. Now the legislator has directly regulated the possibility of making a transaction in electronic form.
In addition, the legislator has eased the requirements for signatures in transactions. An analogue of a signature can be "any method that allows you to reliably identify the person who expressed his will." Obviously, any types of electronic signature can be used in such ways in accordance with Federal Law No. 63-FZ of April 6, 2011 "On Electronic Signature" (hereinafter - Federal Law No. 63-FZ) <9>.
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<9> Federal Law No. 63-FZ of April 6, 2011 (as amended on 07/02/2021) (with amendments and additions, intro. effective from 03/01/2022) "On electronic signature".
Federal Law No. 34-FZ also partially amended the rule established in paragraph 2 of Article 434 of the Civil Code of the Russian Federation that bilateral (multilateral) transactions - contracts in writing have several ways of conclusion: drafting one document (including electronic) signed by the parties, exchange of letters, telegrams, electronic documents or other data in accordance with the rules of the second paragraph of paragraph 1 of Article 160 of the Civil Code of the Russian Federation.
Thus, the above-mentioned provisions of the Civil Code of the Russian Federation are used in the field of concluding transactions through information and telecommunication means in conjunction with the norms of Federal Law No. 63-FZ. The scope of this Law is public relations in the field of the use of electronic signatures, in particular when concluding civil law transactions, but at the same time, the procedure for making transactions via the Internet is not regulated. In the practice of concluding this form of transactions, the question of the moment of conclusion of the contract is of particular interest, since the moment when the rights and obligations of the parties to the electronic contract arise depends on its correct establishment.
Let's turn to the experience of China. The main document regulating legal relations on transactions concluded using online platforms is the Law of the People's Republic of China "On Electronic Commerce" <10>. When it comes to legal problems arising in the context of information and telecommunications facilities, currently the Civil Code of the People's Republic of China (hereinafter referred to as the Civil Code of the People's Republic of China) <11> provides for such issues as questions about data, about network virtual property, contracts (e-commerce) concluded using the Internet, about protection of personal information and tort liability on the Internet, etc.
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<10> .
<11> The Civil Code of the People's Republic of China.
As for the legal regulation of the procedures for making transactions via the Internet, Article 491 of the Civil Code of the People's Republic of China states that if, when concluding a contract using postal messages, digital electronic messages, the party requires signing a confirmation, the contract is recognized as concluded from the moment such confirmation is signed. If the information about goods or services posted by one of the parties on the Internet or another information network meets the requirements for the offer, then the contract is concluded from the moment the other party selects these goods and services and successfully sends the order, unless, however, the agreement of the parties provides otherwise. In addition, Article 512 of the Civil Code of the People's Republic of China also defines the terms of delivery of goods under an online purchase agreement, the time of provision of services, etc.
It should be pointed out that in the field of e-commerce, the shortcomings of the traditional theory of determining the conclusion of a contract are more vividly reflected, since e-commerce includes large-scale transactions, i.e. the subject of transactions is uncertain, a large number of transactions entails more mandatory rules for consumer protection, which increases the complexity of determining the conclusion of a contract. In fact, the judgment on the conclusion of a contract contains many legal value judgments <12>.
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<12> Sun Liangguo. Determining the moment of concluding a contract and evaluating contract law // Journal of the East China University of Political Science and Law. 2018. N 2..
Based on this, as an object of analysis, we will consider the procedure for making transactions on the Amazon website, which is the most developed e-commerce company.
The electronic contract used by this company actually has a reference value, and also allows you to systematically check whether the rules for concluding a contract can meet the needs of e-commerce development.
The contract signing procedure provided by Amazon is as follows: sellers display products through advertising, and consumers select the products they are interested in and place them in the shopping cart. At this stage, they can go to the settlement center to make the payment. If the seller supports cash on delivery, consumers can opt out of online payments. After that, consumers can confirm the order and send it. The system will then automatically send a confirmation email. The confirmation letter is specially highlighted in black font. It states: "This order confirmation email only confirms that we have received your order, and only when we send you a delivery confirmation email to inform you that we have shipped the product, the contract is considered concluded." Usually, within a few days, the Amazon system sends an email with a delivery notification. As an example for analysis, the author mainly uses prepayment as the most commonly used form of payment.
The precise definition of the terms of the conclusion of the contract according to the law is of theoretical and practical importance for the formation of a more reasonable transaction procedure. The moment of conclusion of the contract determines whether both parties are bound by the contract, whether they have legal obligations and what types of responsibilities they bear <13>.
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<13> Klass G. Efficient Breach // The Philosophical Foundations of Contract Law / Eds. by G. Klass, G. Letsas, P. Saprai. Oxford University Press, 2014. P. 362 - 387.
In theoretical and practical circles, there are different views at the time of the conclusion of the contract, based on different positions.
The first position is that the contract is concluded at the moment when the buyer selects the product (puts it in the basket) <14>. This is due to the fact that the product information on the Amazon website consists of key elements such as price and quantity, which can be considered as an offer; the buyer gives acceptance when the product is placed in the cart. At this stage, a "consensus view has been reached that one is selling and the other is buying." Payment, delivery, etc. are the fulfillment of the contract, not the requirements of the institution. This point can be confirmed by the Interpretation of the Supreme People's Court on a number of issues related to the application of the treaty law of the People's Republic of China (2) (hereinafter - Interpretation). Paragraph 1 of Article 1 of the Interpretation reads as follows: "If the parties dispute whether a contract has been concluded and the people's court can determine the name, subject and number of the parties, the contract is usually considered concluded, however, unless otherwise provided by law or otherwise agreed by the parties."
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<14> Murray J.E. The Dubious Status of the Rolling Contract Formation Theory // 50(1) Duquesne Law Review. 2012. Vol. 50. Iss. 1. P. 35 - 81.
The second point of view proceeds from the fact that the contract is concluded at the moment when the buyer successfully places an order <15>. The display of the Amazon advertising page is an offer, and the buyer successfully places an order after checking it and confirming the delivery address, which is an acceptance.
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<15> Yang Lixin. The structure of legal relations in online transactions // Chinese Social Sciences. 2016. N 2. .
Third opinion: the contract is considered concluded when the payment is completed <16>, since the buyer has finally decided on the intention to conclude the contract at this time and the offer for the sale of Amazon goods is considered accepted through payment. Others believe that the buyer's payment is an offer, and the seller's acceptance of the payment is an acceptance.
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<16> Wan Yixian. On the legal problems of e-commerce - focused on online transactions // Legal Publishing House. 2001. 1st ed. 73 p..
The following point of view: the contract is considered concluded when the buyer receives a confirmation email from Amazon. Proponents of this approach assume that the confirmation letter expresses Amazon's intention to finally agree to the conclusion of the contract, since commercial advertising is usually an invitation to an offer <17>, and the buyer's payment is considered an offer and the seller accepts the payment and sends a confirmation letter, which acts as acceptance.
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<17> Zhang Chu. The Law on Electronic Commerce. Chinese People's University Press, 2001. 1st ed. 222 p..
Another view is that the law is based on the concept of autonomy of private law and freedom of contract, respecting the content of the format provisions in the Amazon confirmation letter confirming that the contract is concluded when the buyer receives an email with a delivery notification or SMS.
Finally, the last point of view is based on the fact that the buyer as a consumer is a "weak side" <18>. Based on the special protection of the law for "weak" consumers, the contract must be concluded when the buyer pays for the order. Of course, the initial premise of this point of view is the method of payment by cash on delivery <19>.
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<18> Sun Liangguo. On the main methods of regulation in the new law "On protection of consumer rights" // Modern law. 2014. N 4. .
<19> Cui Jianyuan. Contract Law / Peking University Press, 2012. pp. 50-51. .
Obviously, it is difficult to make the right choice from the above points of view. As Professor Yang Lixin rightly points out, "since the purpose of legal regulation of online transactions is to meet social needs and promote economic development, the moment of conclusion of the contract is considered to be when the consumer successfully places an order." The same approach is used in paragraph 1 of Article 49 of the Law of the People's Republic of China "On Electronic Commerce" <20>.
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<20> See: clause 1 of Article 49 of the Law of the People's Republic of China "On Electronic Commerce": "If information about goods and services published by a business operator can be qualified as an offer, the contract is considered concluded when the user selects these goods and services and successfully places an order. If the parties have provided for a different procedure, then it has priority."
As follows from the above, the form of expression of will is one of the main features of transactions concluded using online platforms. The expression of will on the Internet is made in conjunction with an electronic signature. Although the legislator directly regulated the possibility of making a transaction in electronic form, the main difference in the legislation of the Russian Federation is the absence of mention of the moment of conclusion of this form of transactions (contracts). It is legitimate to point out that when making transactions via the Internet, fixing this gap in legislation is of paramount legal importance.
