在国内和国际商业与国际法中建立信任 [8]
论文作者:英语论文论文属性:短文 essay登出时间:2014-10-11编辑:zcm84984点击率:15087
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关键词:国际电子商务E-Commerce国际法LAW ESSAY电子签名技术
摘要:本文是一篇国际商业与国际法的留学生法律作业,为在国家和国际电子商务力图树立信心,电子签名已经成为大多数电子通信的重要组成部分。无论是在合同或交易的通信,发达国家和发展中国家都采取和实施各项准则和法规来规范使用电子签名。
ized legislation.
COMPARATIVE ANALYSIS
There are great similarities between the different legislations in these five countries in relation to facilitating the full utilization of electronic signature technologies in addition to encouraging rapid growth in electronic commercial activities. However there has been no harmonized method of accomplishing this objective.
The regulatory approaches in these countries differ in structure and interpretation, for instance countries that adopted the same regulatory approach still have different provisions relating to the nature and level of reliability of electronic signatures, regulating the relationship and behaviour of transacting parties, recognition of certification authorities and certificates and most importantly recognition and acceptance of foreign electronic signatures and technologies. Although the laws provide a rudimentary definition of electronic signature laws to include different types of electronic signatures, substantial level of recognition, legal effect and validity given to these technologies is divergent in these countries.
In USA and the UK, the minimalist system of legislation adopted does not favour a specific type of electronic signature rather it provides equal legal validity to all forms of electronic signatures provided the intention to authenticate a document is established. The evidential value and admissibility is then left at the courts discretion. Germany, China and South Africa on the other hand adopted the two tier approach of legislation, whereby different types of electronic signatures receive legal validity but reliable or advanced electronic signatures receive preferential presumption of their validity until proven otherwise. [78]
The laws regulate the conduct of the parties involved in an electronic transaction and impose liability on them in different ways while some laws are silent on these issues. Laws in the US for instance are silent on regulating the conduct and relationship between the signatory, relying party and the certification authority, or even impose a minimum liability on certification authorities in the event of a dispute. Nevertheless, e-sign makes provisions for consumer protection. In the UK they laws are also silent on regulating the behaviour of the signatory, relying party and the certification authority even though the ESR prescribes fundamental requirements, duties and liabilities on certification authorities that issue verified certificates to the public to be used for commercial purpose. [79]
The laws in UK, USA, Germany and South Africa are silent on regulating the behaviour of transacting parties, while the Chinese ESR imposes a duty of care on the signatory to validate the authenticity of an electronic signature, but is silent on the role of the relying party in an electronic transaction [80]
Germany, China and South Africa assigned duties and obligations on certification authority. For instance in South Africa, the authentication authority is mandated to supervise the behaviour, authentication processes and procedure of authentication service providers and retain a database containing details on electronic signatures and ensure the database can be accessed publicly. [81] In addition the German and Chinese law imposed strict liability on certification authorities in relation to issued certificates even though t
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