Today, the world have shifts of emphasis from the communication and information retrieval functions of the Internet to its implementation with the help of modern business. This is due to the ability of network technologies to radically change the way people and companies interact, research methods, sales and more. Not only does the Internet provide rapid “roll-out” of network, business, but also changes competition in most traditional sectors of the economy, such as media information, telecommunications, financial services, transportation, education and more.
In order to determine the organizational and legal foundations of activity in the field of e-commerce, to establish the procedure for committing electronic transactions using information and telecommunication systems, the Parliament adopted the main normative document in this area – Law of Ukraine “On E-commerce”.
However, a large number of issues in this field remain unresolved in the domestic regulatory framework, which often leads to violations of the rights and interests of individuals and legal entities. Therefore, proper and effective legal regulation of the issues under consideration is currently particularly relevant.
According to Ukrainian law, e-commerce is a profit-seeking relationship arising from the acquisition, modification or termination of civil rights and obligations remotely using information and telecommunication systems.
For a complete understanding of the concept of “e-commerce” should highlight its main features:
1) Complexity: e-commerce is a systemic concept that includes relations in the field of electronic documents and workflow, in the sphere of entering into transactions of using electronic signatures;
2) availability of telecommunication network: the medium for making transactions and providing banking services is the telecommunication network;
3) a dispositive approach to the choice of telecommunication network: no use of a specific network is required. Of course, for the most part, such activities are carried out using the Internet, but the possibility of using others is not excluded. Given the rapid development of information technology, the emergence of new ways of exchanging electronic documents is not excluded;
4) non-exhaustive list of transactions that can be made using telecommunication networks: the law does not set restrictions on either the subject matter or the type of transactions that are concluded in the above manner.
The Internet commerce sector in Ukraine is not developing as fast as in other countries and has a more modest investment because online stores have not yet received mass recognition by Ukrainian buyers.
In Ukraine, such a form of business-to-business organization as a business-to-business e-commerce is very promising. In the context of active development of joint commerce, when enterprises not only buy products from each other, but also work together to produce new goods and services, e-commerce in this direction is of particular importance.
Ukraine can benefit greatly from a sustainable e-commerce market, such as:
access to the export market;
jobs for skilled labor;
access to Western investment capital;
increase in tax revenues from the use of electronic payments.
However, to take advantage of these benefits, any obstacles to effective implementation of e-commerce should be eliminated, and its support mechanisms should be regulated.
The following levels of legal regulation of e-commerce relationships should be highlighted:
1. international;
2. regional (within Europe);
3. national.
INTERNATIONAL ACTIVITIES IN THE FIELD OF E-COMMERCE:
UNCITRAL Model Law on Electronic Commerce of 1996 The Model UNCITRAL Law on Electronic Commerce adopted in New York in 1996 (hereinafter referred to as the 1996 UNCITRAL Model Law) is a model for national legislation in this area for different countries.
Thus, the UNCITRAL Model Law of 1996 discloses the following points:
used terminological and conceptual apparatus;
issues of the legal validity of communications and data transmission are regulated;
regulating the conclusion of contracts in electronic form and outlining their main features;
outlines the principles of international trade in the “information highway era”;
regulate the issues of document flow of freight transportation, etc.
It is no exaggeration to state that this document has laid the foundation for the legal regulation of e-commerce activity and is used to harmonize international and national law. The advisability of implementing the 1996 UNCITRAL Model Law is set out in United Nations General Assembly Resolution A / 51/628 of 30.01.1997.
2001 UNCITRAL Model Law on Electronic Signatures
According to its preamble, the law applies when electronic signatures are used in the context of trading activities and is not overriding any rule of law intended to protect consumers.
The 2001 UNCITRAL Electronic Signature Act establishes:
mode for electronic signature creation technologies;
provisions on compliance with the requirement for signature availability;
the behavior of the signatory;
the behavior of the certification service provider;
the procedure for recognition of foreign certificates and electronic signatures.
NATIONAL LEGISLATION IN THE FIELD OF ELECTRONIC COMMERCE
Legal regulation of e-commerce is carried out by the Civil Code, the Law of Ukraine “On e-commerce” and other legislative acts. However, such areas as electronic payment systems, customs clearance and taxation, confidentiality, security, protection of intellectual property require improvement of legal regulation. It should be noted that Law No. 675-VIII is, in general, a progressive act, since it regulates a large array of social relations that, before its adoption, were generally outside the legal field. However, the law does not work for a long time, some of its provisions require improvement, and therefore it will be amended in practice.
Among the positive innovations of Law are the following:
e-commerce principles are legalized;
basic terms are explained;
introduced provisions on e-commerce participants and determined their legal status;
the legal regime of the Law of Ukraine “On Consumer Protection” is extended to the buyer of products via the Internet;
the rights and obligations of the parties;
requirements for information on trade objects are given;
the procedure for concluding electronic transactions is regulated in detail;
provisions for personal data protection were introduced.
From now on, an electronic agreement is equivalent. In this regard, such agreements can be used as evidence in court, which is a progressive step. However, the difficulties of proving the content of the agreement by the stakeholder remain.
Among others, the following acts in this field that apply in Europe are worth mentioning: the Convention on the Protection of Individuals with regard to the Automatic Processing of Personal Data of 28 January 1981
Suggestions and conclusions:
Every country, have laws that determine the legal validity of an electronic document, which are required. Legal documents must be adopted for legal entities to ensure the efficient operation of the e-commerce system, address legal privacy issues, e-commerce taxation, export control of cryptographic technologies, use of data on e-commerce. the nature of site visitors’ behavior, purchase information, transaction anonymity, etc.
The strategic task of all countries is to develop a typical e-commerce project that would list the basic principles of e-commerce regulation and define its scope, participants, the required set of regulations, the parameters of its self-regulation through “codes of conduct”, conditions for unimpeded commercial activity, the free movement of goods, services and financial resources and the guarantee of judicial protection of the rights of e-commerce participants.
The provisions of relevant international conventions and the experience of the participants in the European Union should be fully exploited in the creation and improvement of e-commerce legislation. In many EU countries, special legal acts regulating electronic signatures have been adopted, for example, in Germany in 1997 – the Law on Electronic Digital Signature. In the US, such laws even have separate states. These include the Utah Law on Electronic Digital Signature (1996), the relevant laws of the states of California and Massachusetts.
Andrey Pigulko, 111i
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