浅谈电子合同合法性的实现工具

 

导语:

一直以来,电子合同的发展备受关注。无论政府、企业乃至个人,在使用电子合同时,是否具备法律效力成为大家首要关注的问题。

 

在给予电子合同“合法地位”之前,有必要对电子合同背后的法律逻辑进行说明,即法律到底对电子合同做了哪些要求,为什么保障电子合同法律有效性如此重要且繁琐:

 

1、《民法》规定:“十八周岁以上的个人具有完全民事行为能力,可以独立进行民事活动”、“精神病人是无民事行为能力人,由他的法定代理人代理民事活动”;

《合同法》规定:“当事人订立合同,应当具有相应的民事权利能力和民事行为能力”等;

——说明:通过网络缔约合同的双方(或多方)必须具备法律“能力”

 

2、《合同法》规定“当事人应当按照约定全面履行自己的义务”,其实说明当事人不用履行合同条款没有约定的事项,合同不能单方篡改;

——说明:当事人无需履行合同条款以外事项

 

3、《民事诉讼法》规定,根据表现形式不同,民事证据分别为包括电子数据在内的八类证据才能算作证据。

——说明:除了规定内的证据类型,其他证据形式是不受法院认可的。

 

结合上述电子合同的法律逻辑,要确保电子合同合法有效,即需解决以下几项问题:

 

1、谁签署——身份认证

有别于纸质合同线下面签的形式,电子合同订立与网络环境,合同当事人互不碰面。如何在网络媒介的前提之下确认进行签署电子合同的是“有完全民事行为能力的人”,即证明“你”就是“你”,是肯定合同成立与否的重要条件之一;

 

2、何时签——签订时间

合同当事人只有在合同签约后才能履行合同,而在签约之前当事人一方即使做了合同上的事,也会因为合同当时未成立而无法适用。明确履约时间是减少合同纠纷的重要措施。

 

此外,当签署人提交电子合同的纸质文档时,是不会显示“确认”、“同意”这个过程的,怎样如实呈现电子合同的状态也需提供明确的时间节点。

 

3、怎么存——证据能力

合同当事人履行的条款必须经当事人确认并同意,一方修改且未经多对方同意确认的内容是不能约束对方的。因此,在电子合同的存储过程中,如何证明其未经单方修改是其证据能力的衡量标准,也是电子合同应用安全性的重要体现。

 

 

三、实现电子合同合法有效性的工具

 

1、公证——电子合同呈现的最佳载体

在我国,公证机关办理的公证行为包括:

  • 证明合同(契约)、委托、遗嘱等法律行为。
  • 证明法律行为以外的法律文书:一切在法律上有效的文书均可公证证明,书面形式的法律行为也是法律文书。
  • 在当事人提起诉讼前,有证据灭失或者难以取证的可能时,当事人为保障将来诉讼取证需要,可申请公证处公证,以保全证据。

……

以淘宝规则公证为例,为避免用户质疑淘宝规则变更,淘宝网每修订一次淘宝规则就对其进行一次公证。当发生争议时,淘宝网只需提交最近一次的淘宝规则公证书做为规则未经篡改的证据即可。

 

公证行为应用到电子合同中,其大致流程为:

电子合同签署完成,通过采集电子合同哈希值(每一份合同的哈希值具备唯一性、不可篡改性)发给权威公证机关进行公证。当合同产生纠纷时,可申请公证机关提供公证书,证明电子合同未经任何篡改,从而证明其法律有效性。

(东方公证处logo)

 

在纠纷发生前为已签署的电子合同“验明正身”,是公证最重要的作用之一。而当诉讼产生时,则需司法鉴定中心提供司法鉴定书,证明电子合同内容未经篡改。

(华政司法鉴定中心logo)

 

2、时间戳——电子合同生成的最好证明

作为第三方工具,时间戳是通过与国家科学院授时中心联合,提供可信时间源。简单来说,时间戳的作用是当使用者在线发生一个动作时,它会立即精确地在线生成标记印戳,标记后则无法再做更改,一经更改就会出现bug。

 

应用到电子合同中,时间戳技术有效确认合同生成的时间以及文件内容的不可篡改性,其应用功能也已经被法院认可。

(契约锁合同时间戳图片)

 

3、第三方存证机构——电子合同存储的最好环境

如果电子合同的签署方同时负责存储合同内容,其意义就好比运动员同时兼顾裁判员的工作,无法保障绝对的公信力。因此,通过可靠的第三方存证机构作为电子合同的存储环境是避免纠纷的最佳选项。

 

通过多重加密算法,第三方存证机构将电子合同的签署时间、签署主题、文本内容、hash值以及签署过程日志等数字信息通过软硬件手段存储到机构数据库中,并确保无法被破解。

(契约锁第三方存证示意图)

 

以网络信贷行业为例,去年,四部委联合发布《网络借贷信息中介机构业务活动管理暂行办法》,明确将第三方存证作为网贷平台合规经营的重要标准之一,以确保电子合同安全存储、行业合规整治。

 

4、数字签名——验证签署身份的最佳手段

通俗意义上,数字签名的功能很重要的作用在于解决实名身份认证问题,也就是从法律角度证明签署合同时的“你”就是“你”。

 

当合同发起人通过第三方平台向签署人发起签署请求时,签约主体通过CA认证机构认证身份并获得数字证书才可授权签署。

 

文件签署后,文本的hash值(每一份文件的hash值具有唯一性)、签名/印章外观、签署人的数字证书经组合后形成数字签名嵌入电子合同文本中。由于数字证书绑定了其持有者的身份信息并经过权威CA认证中心审核签发,因为包含该证书的数字签名具备唯一性、不可篡改性、不可抵赖性。

 

 

结合上述四种工具,如果将四者有机结合形成一个完整的系统,就能够形成证明电子合同合法有效性的完整证据链

(证据链示意图)

 

 

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