On May 27, the Ministry of Commerce held a special working meeting on the drafting of the "Measures for the Administration of Online Transactions" (hereinafter referred to as the "Draft"). According to Professor Yang Jianzhen, one of the experts in the drafting working group of the "Measures" and the director of the Policy and Legal Committee of the China Electronic Commerce Association and the vice president of the School of Management of the University of Shanghai for Science and Technology, the "Draft" has basically taken shape but has not yet been announced to the outside world. Entrusted by the State Council, the "Measures for the Protection of Online Business Data" drafted and formulated by the Ministry of Commerce has begun to solicit opinions.
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As far as China's e-commerce legislation is concerned, although the substantive work on e-commerce legislation has not yet been carried out at the national level, the work of various ministries and provinces on the normative development of e-commerce has begun.
However, due to the rapid development of e-commerce, the legal problems encountered by e-commerce have emerged in the development of online transactions. Although China has made great achievements in the construction of e-commerce policy and legal environment, it is more traditional than developed countries. The limitations of legal limitations and the lack of necessary innovative policies and laws, the formulation of policies and regulations is relatively lagging behind, and there are many blank points in the e-commerce policy and regulation system.
E-commerce legislation into corporate development appeal
Due to the lack of a true "E-commerce Law", the lack of coordination, coordination and stability between the regulations of various competent authorities is becoming a major obstacle to the development of e-commerce enterprises.
In May 2009, "China Business News" focused on the topic of e-commerce legislation, and the joint digital 100 market research company on whether e-commerce should be legislated, the core content of legislation and the role of e-commerce, future development prospects and existing problems An investigation was launched nationwide.
The survey used a random sampling network survey to recover a total of 1074 valid samples in two days, of which 49.7% were males and 50.3% were females; geographical distribution: 29.6% of first-tier cities, 27.2% of secondary cities, and three-fourths The city level was 39.1%, and the others accounted for 4.1%. The distribution of the population in this survey is similar to that reported by CINNIC (Internet Society). The population structure is the same as that of the netizens, and the sampling error is within 8%.
According to the survey, 85.1% of people think that “should be legislatedâ€; a few people think “it is too early†and “no legislation should beâ€. Among them, the feedback from the secondary cities was higher than that of the first-tier cities, which were 86.3% and 85.5% respectively.
"This basically reflects the current public and Internet users' realistic demands for China's e-commerce legislation." Yang insisted.
It is understood that Guangzhou, Shanghai, Hong Kong and other places have gradually legislation to regulate e-commerce. Shanghai began implementing the “Provisions for the Promotion of E-Commerce in Shanghai†from March 1, 2009. It clarified the legal status of e-commerce companies and clearly explained their rights and obligations. At the national legislative level, the relevant laws on e-commerce are only available on the legal level adopted by the National People's Congress. The "Electronic Signature Law of the People's Republic of China" was implemented on April 1, 2005.
Since China has not developed a special "E-commerce Law" for e-commerce, the management and regulation of the e-commerce industry rely on the norms independently formulated by various industry departments, mainly focusing on the administrative regulations and local regulations and regulations of the State Council and various ministries. Wait. For example, in the pharmaceutical industry, the Ministry of Health has issued a medical e-commerce license that can conduct e-commerce transactions on the Internet. The management of other businesses related to e-commerce is scattered among various departments, such as the management of electronic payment rights in the People's Bank of China, the copyright management of e-commerce in the National Copyright Administration, the logistics management is under the jurisdiction of the Ministry of Commerce, and the taxation is financed. Ministry and the State Administration of Taxation.
In this regard, Yang insisted that the existing e-commerce laws and regulations have a majority of departmental regulations and local regulations, fewer regulations, and fewer laws. These departmental regulations and local regulations have lower effectiveness, directly causing their use. Insufficient scope and strength. In addition, although the number of departmental regulations and local regulations is large, due to the lack of guidelines for the planning of law-making laws, the systemicity of China's e-commerce legal system is very poor, and no unified and stable legal principles have been formed. There is a lack of necessary echoes and coordination, and there are even some conflicts and inconsistencies.
"In addition, the international community's call for accelerating legislation on e-commerce in China is also very high." He said that as the EU hopes that China will regulate and legislate on e-commerce, it will see more and more Chinese companies participating in international competition. Then I want to cooperate with Chinese companies. Therefore, we now regulate and legislate for e-commerce, which is not only in line with international standards, but also the needs of our enterprises to go global.
"Online transaction security" becomes the biggest concern
Although the basic framework of industry norms has gradually become clear, but as the biggest bottleneck of e-commerce development, online transaction security issues require a series of supporting laws and regulations to be formulated or adjusted.
According to Yang Jian, the existing "Electronic Signature Law" is only a basic law, which requires supporting related laws such as the Electronic Exchange Law and the Personal Privacy Protection Law. For the current relevant laws and regulations, such as the "ticket law", "accounting law", "maritime law" also need to be adjusted, because these laws have no provisions on the legality of electronic bills, electronic invoices, electronic bills of lading, not with The Electronic Signature Law is linked. For example, the realization of electronic transactions through the network necessarily involves the legality of electronic invoices, and the legality of electronic invoices has not yet been recognized by relevant laws.
For example, on October 26, 2005, the People's Bank of China issued the "Electronic Payment Guidelines (No. 1)", which comprehensively regulated the specifications, safety, technical measures, and responsibility of electronic payment, and implemented them well. The Electronic Signature Law fully estimates some specific problems in the field of electronic payment, which should be said to be a very meaningful and highly operational regulation. However, unfortunately, this regulation may not be a departmental regulation, but it provides a direction of guidance. The enforcement and binding force is very limited, which may cause confusion for service providers and users.
According to the survey conducted by China Business News and Digital 100 Market Research Corporation, the top three factors hindering the development of e-commerce are: the security of online transactions (60.7%), the issue of online credit (51.4%), the law of electronic contracts. Question (46.9%). It seems that although the major trading websites have always emphasized the security of trading on their own platforms, this factor is still the most prominent.
In the interview, the industry has given many expectations to e-commerce legislation. Chen Huabing, deputy general manager of Zhejiang Drilling Circle Information Technology Co., Ltd., said that issues such as invoice management and logistics standards are the bottlenecks restricting the development of e-commerce enterprises. "In addition, due to the high dependence of e-commerce on the credit system, and the imperfection of China's credit system and the lack of integrity, the transaction security and trade financing problems in e-commerce are very prominent. It is urgent to solve the identity authentication of buyers and sellers, credit record inquiry. , credit assessment, payment settlement, accounts receivable management and recovery, transaction guarantees and trade finance, etc. These are all required for general transactions."
Issues such as e-commerce certification issues, e-contracts, electronic payments, and electronic signatures are also of concern to businesses and the public.
"Although the National People's Congress has not yet initiated the legislative work on e-commerce, according to the e-commerce administrative regulations and regulations formulated by various ministries and some provinces, its main purpose and function is to make Chinese e-commerce enterprises not subject to the existing development. Great fluctuations, which in turn led to the development of e-commerce in a healthy and orderly manner." Yang Jian said.
According to the e-commerce administrative regulations and regulations formulated by various ministries and some provinces, the basic legal framework has been very clear, such as the security issues of online transactions that the industry has called for, network credit issues, third-party custody of transaction funds, and transaction disputes. The coordination of arbitration, e-commerce certification issues, electronic payment and the effectiveness of electronic signatures are all key points.
E-commerce taxation is becoming clearer
The State Administration of Taxation has proposed a legal framework for e-commerce tax collection and management, and the tax-free status of e-commerce enterprises will be changed.
For e-commerce legislation, many countries have had heated debates in the legislative process. Some even believe that e-commerce legislation is a constraint on its development, but most people believe that the fundamental purpose of legislation is not to constrain e-commerce, but to ensure the development of e-commerce, so that all traders can foresee the legal consequences of their trading behavior. To enable legal transactions to be protected by law. Experts in the interview said that there have been many disputes in the process of e-commerce legislation in China.
For example, the e-commerce taxation problem, many e-commerce companies are now in a state of no tax, this survey shows that 69.8% of people believe that e-commerce needs to register to obtain a business license and tax, and that what is not needed is only 12.7. %.
IDC (China) released the white paper "E-commerce Service Industry and the Social and Economic Impact of Alibaba's Business Ecology" at the beginning of this year. It is estimated that China's total e-commerce transaction in 2009 will reach 251 billion yuan. In 2008, only four provinces in China had a total GDP of more than 200 billion yuan, and some online transactions did not issue formal invoices.
According to Zhu Ping, a lawyer of the US Shengzhi Law Firm, the State Administration of Taxation also recently stated that it intends to establish a taxation management legal framework for e-commerce from the establishment of a complete taxpayer rights system, improve the legal liability system, improve the design of the tax collection and management procedures, and We will assist in setting up corresponding legal liability regulations and scientifically defining tax jurisdictions, and strive for the support of the legislature and relevant departments to actively promote the revision and improvement of the Tax Administration Law.
Yang Jianzheng said that the taxation issue, the relevant state departments had indicated that they had to levy taxes on e-commerce as early as 2003, and have not started to levy until now. However, it is during these seven years that China's e-commerce has developed rapidly, and some companies like Alibaba have entered the international market. Therefore, if taxation is to be levied in the future, how to levy and how to levy it is a matter of serious and careful consideration in the next step of legislation. "The e-commerce legal system is unrealistic in one step. It can only formulate corresponding regulations on legal issues that are mature or have reached consensus, and constantly improve and revise in the process of e-commerce development."
In addition, legislation alone is not enough to promote the regulation of e-commerce, and the corresponding supporting measures must also keep up. In this survey, nearly 60% of respondents believe that “in addition to continuing to introduce corresponding measures to match the current characteristics of China's e-commerce market, the industry itself must be strictly regulated.â€
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Abstract On May 27th, the Ministry of Commerce held a special working meeting on the drafting of the "Measures for the Administration of Online Transactions" (hereinafter referred to as the "Draft"). According to one of the experts of the Drafting Working Group of the "Measures", the director of the Policy and Law Committee of the China Electronic Commerce Association, and the Shanghai University of Technology...