Electronic form of transactions: Issues of legal regulation

Abstract

This paper analyzes the form of transactions made with the use of electronic and other technical means (electronic form). The research aims to determine the essential features and develop an optimal model of regulation of electronic transactions form, considering foreign experience, theoretical advances, and judicial practice. The relevance of the study is explained by the increasing number of e-transactions which require adequate legal regulation and law enforcement practice. The author consecutively describes internationally recognized regulatory principles of electronic transactions form (non-discrimination, technological neutrality, functional equivalence) and their implementation in Russian and foreign law. In addition, the author analyzes the issue of the correlation between the written and electronic forms, considers and rejects arguments in favor of singling out electronic methods of will formation as an independent (sui generis) form of transactions. Considering the current Russian judicial practice and foreign experience, the study determines the criteria and methods of reliable determination of a person effecting an electronic transaction. On the grounds of dogmatic and political arguments, the overly formalistic idea that the use of a qualified electronic signature is the only way of such identification is rejected. The author also formulates an optimal interpretation of the Russian Civil Code requirement on the reproducibility of the electronic transaction content on a tangible medium unchanged. Based on the results of the study, practical recommendations are described to help judges make fair and reasoned decisions in specific situations interpreting the provisions of the Russian Civil Code on the electronic form of transactions.