【作者】 郭潇；

【导师】 王明锁；

【作者基本信息】 河南大学 ， 民商法学， 2010， 硕士

【摘要】 在网络购物日益走入人们生活的今天,许多人都享受到了它的便捷和实惠。但是这种新型的商业交易模式,也对传统的民商事法律带来很大冲击。对于网络购物现有的法律规范有很多难以调整的地方,也产生了不少争议。尽管我国为了应对电子商务的发展出台了《电子签名法》,但也只是解决了现实中产生的部分问题。由于网络购物交易模式中买方身份的虚拟性、交易过程的不确定性以及交易支付模式转变为货到付款或第三方支付的方式,这为网购中买方侵犯卖方权益或随意对卖方违约提供了客观条件,致使很多时候网络卖方的权益处于很难保护的状态。因此对网络购物中卖方权益受到侵害的形式及原因进行现实和理论的分析是必要的,对解决此问题做出探讨也是有益的,其实依据民事公平原则,在保护消费者权益的同时并对网络卖方的权益关注也是应该的。本文共分四个部分。第一部分是网络购物中卖方特殊性的分析,在传统的买卖合同中,由于大多是面对面交易,卖方也大多有相应的经营场所,买卖合同卖方的身份较易确定,也基本是适格的民事主体。而在网络购物中,特别是在第三方提供网络交易平台的情况下,卖方所展现出来的只是电子身份和网络店铺。目前的法律法规暂无有效核实卖方的身份的有效措施,导致在传统买卖中不能成为合同主体的自然人,而在网络购物中则可顺利缔结合同,并完成所有的履行程序;在传统的买卖合同订立过程中,需要缔约当事人的直接意思表示,而在网络购物中意思表示可以不是亲自作出的,而是可由事先设定的程序自动判断作出;在传统的买卖合同中,签名大都要求当事人亲自作出并需书面形式确认,而在网络购物合同中对电子签名不再要求只以书面的形式表现,而是只要真实、完整、可查询即可,同时规定电子签名效力等同于书面签名。第二部分对网络购物中卖方权益遭受损害的类型和原因作出分析,尽管网购中卖方的权益是一致的,但由于其交易的平台和支付的模式有很大不同,所以不同的交易模式所受到侵害的类型是有所不同的。在“商家-客户”模式中,由于商家自建自管购物网站且缔约合同的过程中卖方的意思表示由程序自动做出,并采取货到付款的支付模式,所以非适格的民事主体的购买行为较易出现,也为买方恶意下订单提供了便利条件,同时商品送达后买方拒不受领的机率大增,因设备、技术或黑客侵入而导致的交易数据丢失、改变或无法传达的情况也时有发生;而在“客户—客户”模式中由于交易平台由第三方提供,缔约过程的意思表示很多时候是交互进行的,支付方式大多为第三方支付,所以对“商家-客户”模式中所遭受的损害在此模式下较少出现,但“客户-客户”模式下其所遭受的损害有自身的特殊性。由于卖方是租赁第三方的交易平台,其与网站有相关的管理协议,导致买方进行恶意投诉会使卖方的网店关闭;尽管支付方式由第三方支付,但消费者恶意反悔在现实中依然常见;对于网站管理方而言,因自身利益而时不时部分或全部屏蔽卖方的网店或商品也是常见的。对于卖方遭受的损害原因,既有网络及技术的原因,也有人为和法律方面的因素,因技术、设备和网络虚拟性的特征使得网络卖方基本无法完全知悉和控制交易的真实过程,而主要有数据电文作出判断,这就难免有疏忽和错误,此外卖方对消费者信息的劣势和人们对卖方是强势群体的思维定势也是很重要的因素。第三部分是现有的法律法规对卖方权益的保护和不足分析,在市场经济体系下,对消费者权益保护的同时亦对卖方权益平衡关注,不仅体现公平原则,也对市场经济的发展有现实意义。我国对网络购物的规范主要是依据现行的《合同法》和《电子签名法》,以及国务院、商务部发布的有关电子商务的政策性文件。现行的相关法律法规和一些指导意见,对我国当前的网络购物的发展有推动作用,但是现行的法律规范大都是概括性规范,在解决具体问题时不具有可操作性,尽管一些政策性文件或意见有相对具体的规范,不过不具有法律的强制性。第四部分主要对网络购物中卖方权益的保护提出自己的见解与建议。首先应建立消费者的身份确认体系,以解决网购中身份虚拟性所引发的问题,这应该从两方面着手,一方面参照我国银行业务中的《个人存款账户实名制》建立消费者身份确认体系,二是购物网站自身设定一些消费者身份确认措施;其次,由于网络交易中讯息传递的即时到达性,使得要约、承诺的撤回和要约的撤销基本不能实现,那么建立确认收讫制度则是可应对的策略之一,同时也应该给承诺一个考虑期,这样也是给要约一个撤销期,这也使得《合同法》关于要约撤销的规定依然可顺利适用于网购合同中;对于网购纠纷产生的在线性和现实解决的不经济性,故建立网络非诉解决机制则是合适的选择;最后提请网络卖方要主动核实订单,建立内部客户信用制度等措施来避免一些不必要的风险。更多还原

【Abstract】 Online shopping today has already stepped into people’s lives, and many people enjoy the convenience and benefits from it. But this new model of business transactions also exerts great impact on the traditional civil and commercial law. To adjust this new phenomenon, the existing legal norms can not reach a lot of places and also have a lot of controversy. In response to the development of electronic commerce in China, the department concerned has issued the "Electronic Signature Law”, which, however, has only solved some of the problems arising in reality. As online shopping transactions’buyers’identity is virtual, the transaction process model is filled with uncertainty and transactions into a cash on delivery or the third party payment method for online shopping, all mentioned above is in the interests of the buyer. This arbitrarily violates the breach of contract against the seller, which has provided an objective condition, often resulting in a network difficult to protect the interests of the seller’s state.Therefore, the seller on online shopping in the form of rights have been violated and the reasons for practical and theoretical analysis is necessary to make a study on this issue is useful, in fact, based on the principle of fairness in the protection of civil rights and interests of consumers and the network, while the seller rights concerns it should be. This article is divided into four parts. The first part is the particularity of online shopping in the analysis of the seller. In the traditional contract of sale, due to face to face transaction, the seller also has corresponding business places, so the contract is easier to determine the identity of the seller. It is basically a civil eligibility subject. While online shopping, especially in the trading system and third party cases, the seller is only exhibited by electronic identity and network outlets. No current legal status of an effective verification of the seller and effective measures, resulting in the traditional contract of sale and can not be natural subjects. Online shopping in the successful conclusion of a contract can, and do all the fulfillment process; in the traditional setting process of sales contract, the need for the expression of the meaning from the contracting parties should be direc; while the intention in online shopping may not be made in person, but can be pre-configured automatically. The traditional contract of sale requests the parties to sign and then be confirmed in the form of writing, but in online shopping it is no longer needed. The contract requirements of electronic signatures are enough, as long as they are real, complete and can be inquired. The electronic signatures have the same effect as a written signature.The second part is an analysis of the types and the reasons of the sellers’loss of interests on the online shopping despite net purchases are in the interests of the two at the same time. But because of its trading platform and payment models are very different, different trading patterns’types of abuse are different. In the "business - customer" model, as businessmen build and manage their own shopping site in the process of contracting, the contract means that the sales can be made automatically by the program and cash can be taken on delivery payment mode, so the main body of non-eligibility of the Civil The purchase prone, but also facilitated conditions for hostile orders. While the possibility for buyers’refusal to take delivery of goods has greatly increased t, due to equipment, technology or hacker intrusion and loss of data resulting from transactions, change or the situation which can not convey will occur frequently; in "customer - client" mode, as trading platform provided by a third party in contracting process, meaning that very often the interaction and the payment are mostly the third-party payment, the "business - client "mode, therefore suffered less damage which occurs in such situations. But the damage of the“customers - clients " mode has its own special characteristics. Because the seller is leasing a third party trading platform with the site related to the management agreements, which would lead the buyer to malicious complaint agreement, resulting in the closedown of the online shops; While as to the payment by a third party method, consumers’malicious going back on in the real world is still common; For the site management sides, due to their own interests, from time to time shielding some or all of the sellers’online shop or commodities are common. The reasons for the damage to the sellers have both network and technical reasons. It also has the human and the legal factors. Because of technology, equipment and network characteristics of the virtual network, the sellers cannot control the basic transaction and be aware of the real process. They mainly depend on the data message to judge, which has its negligence and errors. In addition,the disadvantages of the seller information,as well the consumers mindset—the seller is a strong group—is also very important.The third part is the analysis of the deficiency of the existing laws and regulations on the protection of the rights of the sellers. In the market economy, the protection of the consumers’interests should be balanced with the sellers’, which will not only embody the principles of fairness, but also will have practical significance to the development of the market economy. Norms of the online shopping in China are mainly based on the current "contract law", and "electronic signature law", and the State Department, as well as the Commerce Department’s policy document on e-commerce. The present relevant laws and regulations and some guidance have promoted the online shopping, but the current legal code and construction practice are the general norms, when resolving specific problems, they are not operational. Although some policy documents or comments have relatively specific norms, they are not legally mandatory.In the fourth part, the author of this paper puts forward his own views as well as some suggestions on the protection of the rights of both sides. First, the identification system of the consumer should be established in order to solve the identity problems arising from the virtual nature of online shopping. It should be dealt with from two folds: one is to establish consumer identity verification system in the light of banking business "personal deposit accounts under real names”. Second, some consumer shopping site itself had better set identification measures; besides, due to the simultaneous arrival of the messages during the network transactions, the making of an offer, the promise of withdrawal and the revocation of the basic agreement, can not be achieved, then the system set up to confirm receipt can be considered as one of the strategies to deal with the problems. Such a withdrawal would give the offer period, which makes the "Contract Law" on Yao Yue Shun Li revocation provisions still apply to online shopping may be in the contract; for disputes arising from online shopping and the uneconomical solutions to the real, networking non-complaint resolution mechanism is a suitable choice; finally the seller should bear in mind that he or she has to take the initiative to verify the network orders and establish internal customer credit system and other measures to avoid unnecessary risks.更多还原