A Comparative Study on Consumer Protection in E-commerce Transactions
- Issued Date
- 2014
- Abstract
- Abstract
A Comparative Study on Consumer Protection in E-commerce Transactions
Yehya Hossen Ali
Advisor: Kwon Sang Ro
College of law, Chosun University
Modern legislations now focus on consumer protection in E-commerce as consumers generally represent the weaker party of the contract. Although general laws of the civil legislation did not provide adequate protection to the consumer, recent legislations have come up with more means of consumer protection in both pre and post contracting stages. Ideas surrounding consumer protection have existed for a long time but there has been no legal agreement or consensus regarding the definition of the consumer.
This study is divided into four chapters with the first chapter dedicated to discussing the definitions of the consumer and concept of E-contracts on a legislative and judicial level according to the Egyptian and French laws as well as the European Directives. This chapter will also touch upon the E-Commerce Concept and how it is linked to specifying the definition of the consumer.
The second chapter discusses the electronic signature in E-commerce transactions and the growing importance of E-signatures in replacing hand written signatures in terms of documentation and authentication in E-commerce transactions. This chapter will deal with the concept of the electronic signature and the extent of proving its authenticity, as well as the documentation of the electronic signature with an outline of the role authentication agencies have to play. It will also discuss the varying forms and conditions of the electronic signature in light of international efforts and comparative legislations. Comparisons are also made in the Egyptian and French legislations as well as a number of European directives and legislations.
The third chapter discusses the arbitrary clauses of E-commerce contracts supplied by the professional or the stronger party in contracts concluded where one party is a weaker non-professional compared the stronger professional, with aims of realizing the interests of the non-professional at the expense of the other party. Compliance Contracts include arbitrary clauses and the emergence of compliance contracts was one of the most important reasons leading to the creation the arbitrary clauses. As a number of researchers have claimed it is the fertile field on which arbitrary clauses appear.
This chapter explains the meaning and features of the compliance contract briefly, then goes on to explain to what extent E-Commerce Contracts along with compliance contracts can be considered by the consumer. It also analyses the meaning of arbitrary clauses and its invalidity. Finally, the study will present the constitutions of arbitrary clauses in E-Commerce contracts and how to resist them.
The fourth chapter discusses the consumer's right to withdraw from E-contracts and explains the legal nature and concept of withdrawing from contracts as well as the extent of its binding force impact on the contract. This chapter will also discuss online distance or off-premises contracts which have now become one of the most internationally widespread forms of legal agreements. The vast development and progress of modern means of communication has contributed to the increased use of these types of contracts, which has in turn widened the scope of issues connected to their usage, such as the consumer's right to withdraw, the legal nature of such agreements and their binding force, and post-contract rights of retreat and its implications.
This study compares applicable European, French and Egyptian laws and analyzes the directives contained in the text of comparable regulations to help clarify the respective policies behind them and to assess their effects on the consumer and the other contracting party. Following this, court opinions and other judicial trends will be reviewed with respect to many issues that have been brought up in this research. Particular attention will also be paid to Arab laws and articles which serve to regulate electronic transactions.
- Alternative Title
- 전자상거래에 있어서 소비자보호에 관한
- Alternative Author(s)
- Yehya Hossen Ali
- Affiliation
- Egypt
- Department
- 일반대학원 법학과
- Advisor
- Kwon Sang Ro
- Awarded Date
- 2015-02
- Table Of Contents
- Contents........................................................................I
Korean abstract ...........................................................VI
1. Introduction................................................................1
2. The concept of the consumer in Electronic-commerce (E-commerce) contracts................................................4
2.1 The consumer’s definition..........................................4
2.1.1 Traditional concept of the consumer.........................5
2.1.1.1 The Legislative concept of the consumer................5
2.1.1.2 The jurisprudence’s concept of the consumer........12
2.1.2 Limits to the concept of the consumer.....................14
2.1.2.1 How far can the professional who enters into contracts regarding items that don’t fall within his/her field of specialization be considered a consumer?..................14
2.1.2.2 Does the consumer concept include the natural and juridical person or is it limited to the natural person only?..22
2.2 The E-commerce concept and how far it is reflected on specifying the consumer’s definition...............................27
2.2.1 The E-commerce concept.....................................33
2.2.1.1 The legislative definition of E-commerce...............33
2.2.1.2 The judicial definition of E-commerce...................36
2.2.2 The reflection of E-commerce’s means in the contract on the consumer’s personality.......................................39
3. The online electronic signature for the consumer..........42
3.1 Introduction.............................................................42
3.2 The definition of the electronic signature and the extent of proving its authenticity...............................................43
3.2.1 Understanding the electronic signature and its forms as well as defining the electronic signature and distinguishing it from traditional form...............................46
3.2.2 The functions and forms of the electronic signature...52
3.2.3 Process of proving the authenticity of the electronic signature.....................................................................56
3.3 Proving authenticity of the electronic signature............60
3.3.1 The certification service provider.............................61
3.3.2 Obligations of the certification service provider..........63
3.3.3 The responsibility of the certification provider...........64
3.4 The electronic authorization certificate.......................69
3.4.1 The electronic authorization certificate and the data it should include.............................................................69
3.4.2 Recognizing the capability of electronic authorization certificate.....................................................................72
4. The arbitrary clauses of E-commerce contracts...........74
4.1 Introduction.............................................................74
4.2 The meaning of the Compliance Contract and how far E-Commerce contracts are included within it......................76
4.2.1 The traditional meaning of the compliance contract...76
4.2.1.1 The traditional concept of the compliance Contract.76
4.2.1.2 The modern concept of the compliance contract....78
4.2.2 The extent at which E-Commerce contracts can be considered as compliance contracts to the consumer......80
42.2.1 The view which supports considering E-Commerce contracts as compliance contract to the Consumer..........81
4.2.2.2 The opposing concept of considering the E-Commerce contract as Compliance contracts for the consumer....................................................................83
4.2.2.3 A trend which supports the differentiation between the means of making the E-contract possible to determine if the E-commerce contract is among the compliance contracts or not............................................................84
4.3 The arbitrary condition concept and its invalidity.........86
4.3.1 The arbitrary condition concept...............................86
4.3.1.1 The legislation concept of the arbitrary condition....86
4.3.1.2 The Judicial concept of the arbitrary condition.......89
4.3.2 Invalidity of the arbitrary conditions in the E-commerce contracts.....................................................91
4.3.2.1 The legal texts which indicate the invalidity of the arbitrary condition.........................................................91
4.3.2.2 Invalidity of the arbitrary condition doesn't invalidate the entire contract.........................................................93
4.4 The Fight against arbitrary conditions in E-commerce contracts.....................................................................96
4.4.1 The available methods for the consumer to fight against the arbitrary conditions personally or by the consumer protection organizations.................................96
4.4.1.1 Invalidating the arbitrary condition case.................96
4.4.1.2 Interference of the consumer Protection organizations...............................................................97
4.4.2 Methods of tackling arbitrary conditions through legislative interference ..................................................99
4.4.2.1 The judge’s authority to invalidate the arbitrary condition....................................................................101
4.4.2.2 The non-exclusive List of arbitrary conditions......104
5. The consumer's right to withdraw from e-contracts.....112
5.1 Introduction...........................................................112
5.2 Concept of withdrawal in contracting and its legal nature as well as the extent of its binding force impact on the contract.....................................................................114
5.2.1 Definition of the right to withdraw in contracting and justifications for its existence........................................114
5.2.1.1 Defining the right to withdraw..............................114
5.2.1.2 Justification for the existence of the right to return.116
5.2.2 The nature of the legal right to refer to the contract and its effect on the binding force of the contract...................118
5.2.2.1 The legal nature of the right to withdraw in contracting.................................................................118
5.2.2.2 The extent of impact on the consumer's right to return to the binding force of the contract........................121
5.2.3 Back in the form of contract and conditions.............124
5.2.3.1 Form of withdrawal in contracting........................124
5.2.3.2 Conditions for exercising the right to withdraw in contracting (The general rule)......................................127
5.3 Provisions relating to the exercise of the right of withdrawal from a contract...........................................130
5.3.1 The required time for exercising the right to withdraw in contracting and its validity........................................130
5.3.1.1 The time required to exercise the right to withdraw from a contract...........................................................130
5.3.1.2 Starting of validity for period of withdrawal............138
5.3.2 The scope to exercise the right to withdraw from a contract.....................................................................142
5.3.2.1 Contracts are excluded from the application of the right to withdraw based on the agreement of the parties involved in the contract................................................142
5.3.2.2 Contracts are excluded from the application of the right to withdraw Based on a legal text..........................143
5.3.3 The implications of the exercise of the right of withdrawal from a contract...........................................146
5.3.3.1 The professional’s commitment to return the money to the consumer..........................................................146
5.3.3.2 The consumer bearing costs of withdrawn goods........................................................................150
5.3.3.3 The expiration of all dependent contracts ............156
6. Conclusions and recommendations...........................157
7. References.............................................................162
8. Abstract..................................................................173
- Degree
- Doctor
- Publisher
- 조선대학교
- Citation
- 알리 호센 예하. (2014). A Comparative Study on Consumer Protection in E-commerce Transactions.
- Type
- Dissertation
- URI
- https://oak.chosun.ac.kr/handle/2020.oak/12345
http://chosun.dcollection.net/common/orgView/200000264542
- Appears in Collections:
- General Graduate School > 4. Theses(Ph.D)
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