<ТИПОВОЙ ЗАКОН ЮНСИТРАЛ ОБ ЭЛЕКТРОННОЙ ТОРГОВЛЕ> [англ.](Вместе с <РУКОВОДСТВОМ ПО ПРИМЕНЕНИЮ ТИПОВОГО ЗАКОНА... (1996)>)(Принят в г. Нью-Йорке 28.05.1996 - 14.06.1996 на 29-ой сессии ЮНСИТРАЛ)(с изм. и доп. от 01.06.1998 - 12.06.1998)
UNITED NATIONS
COMMISSION ON INTERNATIONAL TRADE LAW
UNCITRAL MODEL
LAW ON ELECTRONIC COMMERCE 1996
(edit. June 1998)
PART ONE. ELECTRONIC
COMMERCE IN GENERAL
Chapter I
GENERAL PROVISIONS
Article
1
Sphere of application <*>
This Law <**> applies to any
kind of information in the form of a data message used in the context
<***> of commercial <****> activities.
--------------------------------
<*> The Commission suggests the
following text for States that might wish to limit the applicability of this Law
to international data messages:
"This Law applies to a data message as
defined in paragraph (1) of article 2 where the data message relates to
international commerce."
<**> This Law does not override any rule
of law intended for the protection of consumers.
<***> The
Commission suggests the following text for States that might wish to extend the
applicability of this Law: "This Law applies to any kind of information in the
form of a data message, except in the following situations: [...]."
<****> The term "commercial" should be given a wide interpretation so as
to cover matters arising from all relationships of a commercial nature, whether
contractual or not. Relationships of a commercial nature include, but are not
limited to, the following transactions: any trade transaction for the supply or
exchange of goods or services; distribution agreement; commercial representation
or agency; factoring; leasing; construction of works; consulting; engineering;
licensing; investment; financing; banking; insurance; exploitation agreement or
concession; joint venture and other forms of industrial or business cooperation;
carriage of goods or passengers by air, sea, rail or road.
Article
2
Definitions
For the purposes of this Law:
(a) "Data message"
means information generated, sent, received or stored by electronic, optical or
similar means including, but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy;
(b) "Electronic data
interchange (EDI)" means the electronic transfer from computer to computer of
information using an agreed standard to structure the information;
(c)
"Originator" of a data message means a person by whom, or on whose behalf, the
data message purports to have been sent or generated prior to storage, if any,
but it does not include a person acting as an intermediary with respect to that
data message;
(d) "Addressee" of a data message means a person who is
intended by the originator to receive the data message, but does not include a
person acting as an intermediary with respect to that data message;
(e)
"Intermediary", with respect to a particular data message, means a person who,
on behalf of another person, sends, receives or stores that data message or
provides other services with respect to that data message;
(f)
"Information system" means a system for generating, sending, receiving, storing
or otherwise processing data messages.
Article 3
Interpretation
(1)
In the interpretation of this Law, regard is to be had to its international
origin and to the need to promote uniformity in its application and the
observance of good faith.
(2) Questions concerning matters governed by
this Law which are not expressly settled in it are to be settled in conformity
with the general principles on which this Law is based.
Article
4
Variation by agreement
(1) As between parties involved in generating,
sending, receiving, storing or otherwise processing data messages, and except as
otherwise provided, the provisions of chapter III may be varied by
agreement.
(2) Paragraph (1) does not affect any right that may exist to
modify by agreement any rule of law referred to in chapter II.
Chapter
II
APPLICATION OF LEGAL REQUIREMENTS TO DATA MESSAGES
Article
5
Legal recognition of data messages
Information shall not be denied
legal effect, validity or enforce- ability solely on the grounds that it is in
the form of a data message.
Article 5 bis
Incorporation by
reference
(as adopted by the Commission at its
thirty-first session,
in June 1998)
Information shall not be denied legal effect, validity or
enforceability solely on the grounds that it is not contained in the data
message purporting to give rise to such legal effect, but is merely referred to
in that data message.
Article 6
Writing
(1) Where the law requires
information to be in writing, that requirement is met by a data message if the
information contained therein is accessible so as to be usable for subsequent
reference.
(2) Paragraph (1) applies whether the requirement therein is
in the form of an obligation or whether the law simply provides consequences for
the information not being in writing.
(3) The provisions of this article
do not apply to the following: [...].
Article 7
Signature
(1) Where
the law requires a signature of a person, that requirement is met in relation to
a data message if:
(a) a method is used to identify that person and to
indicate that person"s approval of the information contained in the data
message; and
(b) that method is as reliable as was appropriate for the
purpose for which the data message was generated or communicated, in the light
of all the circumstances, including any relevant agreement.
(2) Paragraph
(1) applies whether the requirement therein is in the form of an obligation or
whether the law simply provides consequences for the absence of a
signature.
(3) The provisions of this article do not apply to the
following: [...].
Article 8
Original
(1) Where the law requires
information to be presented or retained in its original form, that requirement
is met by a data message if:
(a) there exists a reliable assurance as to
the integrity of the information from the time when it was first generated in
its final form, as a data message or otherwise; and
(b) where it is
required that information be presented, that information is capable of being
displayed to the person to whom it is to be presented.
(2) Paragraph (1)
applies whether the requirement therein is in the form of an obligation or
whether the law simply provides consequences for the information not being
presented or retained in its original form.
(3) For the purposes of
subparagraph (a) of paragraph (1):
(a) the criteria for assessing
integrity shall be whether the information has remained complete and unaltered,
apart from the addition of any endorsement and any change which arises in the
normal course of communication, storage and display; and
(b) the standard
of reliability required shall be assessed in the light of the purpose for which
the information was generated and in the light of all the relevant
circumstances.
(4) The provisions of this article do not apply to the
following: [...].
Article 9
Admissibility and evidential weight of data
messages
(1) In any legal proceedings, nothing in the application of the
rules of evidence shall apply so as to deny the admissibility of a data message
in evidence:
(a) on the sole ground that it is a data message; or,
(b) if it is the best evidence that the person adducing it could reasonably be
expected to obtain, on the grounds that it is not in its original form.
(2) Information in the form of a data message shall be given due evidential
weight. In assessing the evidential weight of a data message, regard shall be
had to the reliability of the manner in which the data message was generated,
stored or communicated, to the reliability of the manner in which the integrity
of the information was maintained, to the manner in which its originator was
identified, and to any other relevant factor.
Article 10
Retention of
data messages
(1) Where the law requires that certain documents, records or
information be retained, that requirement is met by retaining data messages,
provided that the following conditions are satisfied:
(a) the information
contained therein is accessible so as to be usable for subsequent reference;
and
(b) the data message is retained in the format in which it was
generated, sent or received, or in a format which can be demonstrated to
represent accurately the information generated, sent or received; and
(c)
such information, if any, is retained as enables the identification of the
origin and destination of a data message and the date and time when it was sent
or received.
(2) An obligation to retain documents, records or
information in accordance with paragraph (1) does not extend to any information
the sole purpose of which is to enable the message to be sent or received.
(3) A person may satisfy the requirement referred to in paragraph (1) by using
the services of any other person, provided that the conditions set forth in
subparagraphs (a), (b) and (c) of paragraph (1) are met.
Chapter
III
COMMUNICATION OF DATA MESSAGES
Article 11
Formation and validity
of contracts
(1) In the context of contract formation, unless otherwise
agreed by the parties, an offer and the acceptance of an offer may be expressed
by means of data messages. Where a data message is used in the formation of a
contract, that contract shall not be denied validity or enforceability on the
sole ground that a data message was used for that purpose.
(2) The
provisions of this article do not apply to the following: [...].
Article
12
Recognition by parties of data messages
(1) As between the originator
and the addressee of a data message, a declaration of will or other statement
shall not be denied legal effect, validity or enforceability solely on the
grounds that it is in the form of a data message.
(2) The provisions of
this article do not apply to the following: [...].
Article
13
Attribution of data messages
(1) A data message is that of the
originator if it was sent by the originator itself.
(2) As between the
originator and the addressee, a data message is deemed to be that of the
originator if it was sent:
(a) by a person who had the authority to act
on behalf of the originator in respect of that data message; or
(b) by an
information system programmed by, or on behalf of, the originator to operate
automatically.
(3) As between the originator and the addressee, an
addressee is entitled to regard a data message as being that of the originator,
and to act on that assumption, if:
(a) in order to ascertain whether the
data message was that of the originator, the addressee properly applied a
procedure previously agreed to by the originator for that purpose; or
(b)
the data message as received by the addressee resulted from the actions of a
person whose relationship with the originator or with any agent of the
originator enabled that person to gain access to a method used by the originator
to identify data messages as its own.
(4) Paragraph (3) does not
apply:
(a) as of the time when the addressee has both received notice
from the originator that the data message is not that of the originator, and had
reasonable time to act accordingly; or
(b) in a case within paragraph
(3)(b), at any time when the addressee knew or should have known, had it
exercised reasonable care or used any agreed procedure, that the data message
was not that of the originator.
(5) Where a data message is that of the
originator or is deemed to be that of the originator, or the addressee is
entitled to act on that assumption, then, as between the originator and the
addressee, the addressee is entitled to regard the data message as received as
being what the originator intended to send, and to act on that assumption. The
addressee is not so entitled when it knew or should have known, had it exercised
reasonable care or used any agreed procedure, that the transmission resulted in
any error in the data message as received.
(6) The addressee is entitled
to regard each data message received as a separate data message and to act on
that assumption, except to the extent that it duplicates another data message
and the addressee knew or should have known, had it exercised reasonable care or
used any agreed procedure, that the data message was a duplicate.
Article
14
Acknowledgement of receipt
(1) Paragraphs (2) to (4) of this article
apply where, on or before sending a data message, or by means of that data
message, the originator has requested or has agreed with the addressee that
receipt of the data message be acknowledged.
(2) Where the originator has
not agreed with the addressee that the acknowledgement be given in a particular
form or by a particular method, an acknowledgement may be given by
(a)
any communication by the addressee, automated or otherwise, or
(b) any
conduct of the addressee,
sufficient to indicate to the originator that
the data message has been received.
(3) Where the originator has stated
that the data message is conditional on receipt of the acknowledgement, the data
message is treated as though it has never been sent, until the acknowledgement
is received.
(4) Where the originator has not stated that the data
message is conditional on receipt of the acknowledgement, and the
acknowledgement has not been received by the originator within the time
specified or agreed or, if no time has been specified or agreed, within a
reasonable time, the originator:
(a) may give notice to the addressee
stating that no acknowledgement has been received and specifying a reasonable
time by which the acknowledgement must be received; and
(b) if the
acknowledgement is not received within the time specified in subparagraph (a),
may, upon notice to the addressee, treat the data message as though it had never
been sent, or exercise any other rights it may have.
(5) Where the
originator receives the addressee"s acknowledgement of receipt, it is presumed
that the related data message was received by the addressee. That presumption
does not imply that the data message corresponds to the message received.
(6) Where the received acknowledgement states that the related data message met
technical requirements, either agreed upon or set forth in applicable standards,
it is presumed that those requirements have been met.
(7) Except in so
far as it relates to the sending or receipt of the data message, this article is
not intended to deal with the legal consequences that may flow either from that
data message or from the acknowledgement of its receipt.
Article 15
Time
and place of dispatch and
