Framework Act on Electronic Commerce

Transcription

1 Framework Act on Electronic Commerce CHAPTER I GENERAL PROVISIONS Article 1 (Purpose) The purpose of this Act is to contribute to the national economy by clarifying the legal concern and ensuring the security and reliability of electronic transaction as well as establishing the framework so as to improve of electronic transactions. Article 2 (Definitions) The definitions of terms used in this Act shall be as follows: 1. "Electronic message" shall mean information which is generated, sent, received or stored in a kind of electronic form by using information processing systems; 2. "Information Processing Systems" shall mean electronic devices or systems which have an information processing ability to be utilized for the generation, transmission reception or store of electronic messages; 3. "Originator" shall mean a person by whom, or on whose behalf, an electronic message purports to have been generated and sent; 4. "Addressee" shall mean a person who is intended by the originator to receive an electronic message; 5. "Electronic commerce" shall mean a transaction of goods or services the whole or part of which is made by using an electronic message; 6. "Electronic commerce businessman" shall mean a person who conducts Electronic commerce as a major business; 7. "Electronic commerce user" shall mean a person who avails himself of Electronic commerce except for Electronic commerce businessman. Article 3 (Scope) Except as otherwise provided in any other Act or subordinate statute, this Act shall apply to all Electronic commerces using electronic messages. CHAPTER II ELECTRONIC MESSAGES Article 4 (Validity of Electronic Messages) An electronic message shall not be denied its validity only because it takes the electronic form except as otherwise provided in any other Acts.

2 Article 5 (Retention of Electronic Messages) (1) Where an electronic message satisfies the following requirements, the retention of any document as set forth in the relevant Acts and subordinate statutes may be replaced by the retention of the electronic message: 1. The information contained therein is accessible; 2. The electronic 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 3. Such information, if any, is retained as enables the identification of the origin and destination of an electronic message and the date and time when it was sent or received. (2) For the purpose of paragraph (1), any part of an electronic message the sole purpose of which is to enable the electronic message to be sent or received may not be deemed to constitute the electronic message. Article 6 (Time and Place of Dispatch and Receipt of Electronic Messages) (1) The dispatch of an electronic message shall be deemed to occur when the originator or the person who can represent the originator enters it information processing systems which are able to receive electronic message. (2) The receipt of an electronic message shall be deemed to occur at any time falling under any of the following: 1. If the addressee has designated an Information processing system for the purpose of receiving electronic messages, the time when the electronic message enters that Information processing system: Provided, That if the electronic message is sent to an Information processing systems that is not designated, the time when the electronic message is retrieved by the addressee; or 2. If the addressee has not designated an Information processing system for the purpose of receiving electronic messages, the time when the electronic message enters an Information processing system of the addressee. (3) An electronic message shall be deemed to be dispatched or received at the place where the originator or the addressee has its place of business; in this case, if the originator or the addressee has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction or if there is no underlying transaction, the principal place of business: Provided, That if the originator or the addressee does not have a place of business, reference is to be made to its habitual residence.

3 Article 7 (Case Where Originator is Deemed to have Sent Electronic Messages) (1) An electronic message shall be deemed to be sent by the originator if it was sent by a person who is authorized to do so on behalf of the originator, or by a computer program or any other electronic means intended to send or receive electronic messages automatically on behalf of the originator. (2) In cases falling under any of the following subparagraphs, the addressee of an electronic message may conduct the declaration of intention included to the electronic message when the declaration of intention may be seen that of the originator. 1. Where the addressee has followed any agreed procedure so as to identify that the electronic message has been made by the originator. 2. Where a received electronic message has been transmitted by the originator or a person who has a justifiable reason to reflect a relationship between the originator and a person who is related to a duputy, or a person who is able to prove that the electronic message is the declaration of intention from the addressee or the deputy (3) The paragraph (2) shall not apply in cases falling under any of the following subparagraphs: 1. Where the addressee would be able to have a reasonable time to conduct an indispensible arrangement after the time the addressee has received a notice from the originator that the electronic message was sent against the intention of the originator. 2. Where the addressee would be able to know that the electronic message was sent against the intention of the originator or if he followed any agreed procedure with the originator, or gave reasonable care in this case paragraph (2) 2. Article 8 (Separateness of Electronic Messages Received) Electronic messages received shall be deemed to be separated from each other: Provided, That this shall not apply in case where the addressee would be able to know that electronic messages which are one and the same was sent repeatedly if the addressee followed any agreed acknowledging procedure which is conferred with the originator, or gave reasonable care. Article 9 (Acknowledgement of Receipt) (1) Where the originator has sent the electronic message stating that it is conditional on receipt of the acknowledgement, it shall be deemed as if it had never been sent, until the acknowledgement is received by the originator. In this case, this does not apply in Article 534 of the Civil Act. (2) Where the originator has requested the acknowledgement of receipt of the electronic message without stating that it is conditional on receipt of the acknowledgement, the

4 originator may withdraw the dispatch of the electronic message unless it receives the acknowledgement thereof within a reasonable time (which means the time specified by the originator, or the time agreed upon by the originator and the addressee). Article 10 (Adaptation by Agreement between the originator and the addressee) The originator and the addressee may conduct an agreement against the provisions of Articles 6 through 9, except as otherwise provided in other Acts and subordinate statutes. Article 11 (Matters concerning Digital Signatures) When the electronic commerce is intended to conduct, any matters concerning electronic signature shall be deemed as a condition prescribed by the electronic signature Act. CHAPTER III THE SECURITY OF ELECTRONIC COMMERCE AND CONSUMER PROTECTION Article 12 (Protection of Personal Information) (1) The Government shall formulate and implement necessary policies for protecting the personal information of the electronic commerce users so as to ensure the security and reliability of electronic commerce. (2) Electronic commerce businessmen shall follow concerning provisions as well as the act on promotion of information and communications network utilization and information protection, etc. in collecting using providing and controlling personal information of the electronic commerce users. Article 13 (Protection of Business Secret) (1) The Government shall formulate and implement necessary policies for protecting the personal information of the electronic commerce users so as to protect the Business secret of the electronic commerce users. (2) Electronic commerce businessmen(including a person who is entrusted the operation of Information processing systems) shall adopt any measures in order to protect the Business secret of the electronic commerce users. (3) Electronic commerce businessmen shall not provide or reveal the fact that the business secrets of users to any other person without obtaining an agreement from the electronic commerce users. (4) Any necessary matters concerning paragraph (1) or (3), criteria for the scope of business secret and protective measure, etc. shall be set forth in the Presidential Decree.

5 Article 14 (Use of Encrypted Products) (1) The businessman of electronic commerce may use the encrypted products to guarantee the security and reliability of electronic commerce. (2) The Government may restrict the use of encryption technology where it is deemed necessary for national security, etc., and take any necessary measures to gain access to the original of encoded information or encryption technology. Article 15 (Establishment and Implementation of the Consumer protection policy, etc.) (1) The Government shall formulate and implement necessary policies for protecting the fundamental right and interest of consumers and ensuring the reliability of consumers related to electronic commerce to the relevant Acts and subordinate statutes including Consumer Protection Act and Door to Door sales, etc. Act. (2) The Government may encourage the establishment of the norm and course of action autonomously to the businessman of electronic commerce or the institute of electronic commerce businessman in order not to occur an unreasonable behavior related to electronic commerce hereafter. Article 16 (Prevention and Remedy of Consumer Damages) (1) The Government shall formulate and implement necessary policies with respect to provision of information and extension of education for consumers to prevent the occurrence of consumer damages related to electronic commerce. (2) The Government shall formulate and implement necessary policies for the prompt and fair settlement of consumers' complaints and damages related to electronic commerce. Article 17 (General Observance Matters of electronic commerce businessman) Electronic commerce businessmen shall observe the following matters to protect consumers related to electronic and to ensure the security and reliability of electronic commerce: 1. Provision accurate information concerning trade name(including the name of the representative in case of a juristic person) and information related to himself etc, as well as goods, services and the condition of contract etc,. 2. Provision and preservation of an agreement to make consumers access and acknowledge easily. 3. Provision of procedures which Consumers may cancel or change the orders of themselves.

6 4. Provision of procedures which may the cancellation of subscription, exchange and returns easily. 5. Provision of procedures which may deal with the complaint and requirement of consumers promptly as well as fairly. 6. Preservation of business documents which are necessary the proof of transactions for reasonable time. Article 18 (Certification for the businessman of electronic commerce) The Government may support a certification business for the excellent businessman of electronic commerce so as to protect consumers and to sound development of electronic commerce businessmen. CHAPTER ESTABLISHMENT OF BASIC POLICES FOR ELECTRONIC COMMERCE AND DEVELOPMENT SYSTEMS Article 19 (Principle of basic policies for electronic commerce and obligation of the Government) The Government shall formulate and implement basic policies based on such principles as encouraged private sector initiative, minimized governmental restrictions, enhanced security and reliability of electronic commerce, and strengthening of international cooperation, etc. Article 20 (Formulation and Implementation of Electronic Commerce Promotion Program) (1) The Government shall formulate and implement a program (hereinafter referred to as the "electronic commerce promotion program") in accordance with the principle of basic policies for electronic commerce as prescribed by Article 19, which contains the following: 1. Basic framework of electronic commerce promotion program; 2. Matters concerning international norms with respect to electronic commerce; 3. Matters concerning the electronic payment system; 4. Matters concerning protecting intellectual property rights; 5. Matters concerning protecting the interests of electronic commerce; 6. Matters concerning guaranteeing the security and reliability of electronic commerce; 7. Matters concerning developing and standardizing information technology with respect to electronic commerce;

7 8. Matters concerning further promoting environments suitable for, and creating demand for, electronic commerce; 9. Matters concerning international cooperation with respect to electronic commerce; 10. Matters concerning supporting the buildup of the infrastructure necessary to promote electronic commerce; 11. Matters concerning establishing high-speedy telecommunication networks and facilitating the use thereof; and 12. Other matters necessary to promote electronic commerce. (2) The heads of relevant central administrative agencies(hereinafter referred to as the "relevant central administrative agencies") shall formulate sectional programs for any such matters falling under subparagraphs of paragraph (1) as are under their respective jurisdiction and shall take them into the consideration in establishing and implementing their major policies. (3) When the Minister of Commerce, Industry and Energy intends to formulate the electronic commerce promotion program, he shall have it established by the Informationization Committee in accordance with Article 8 of the Framework Act on the Informationization Promotion, after combining all the sectional programs of relevant central administrative agencies and then referring them to the Committee on Electronic Commerce Policy for deliberation in accordance with Article 21 hereof. Article 21 (Committee on Electronic Commerce Policy) (1) A Committee on Electronic Commerce Policy (hereinafter referred to as the "Policy Committee") shall be established to deliberate matters related to promoting electronic commerce. (2) The Policy Committee shall deliberate the following matters: 1. The electronic commerce promotion program; 2. The assesment of the performance of the electronic commerce promotion program; 3. The coordination of the policies for promoting electronic commerce or the programs of the relevant central administrative agencies; or 4. Other matters referred to it for deliberation by the Chairman thereof as major policy issues to promote electronic commerce. (3) The Policy Committee shall be composed of less than 30 members of committee including the chairman of the committee. (4) The chairman of the committee shall be the Vice-Minister of Commerce, Industry and Energy and the Minister of Commerce, Industry and Energy shall appoint the person as the member of the committee among government officials of class 3 or more than correspond to class 3 who have taken charge of duties(activities) concerning

8 electronic commerce or persons who have a lot of knowledge and experience related to electronic commerce. (5) Other necessary matters relating to the composition and operation of the Policy Committee shall be prescribed by the Presidential Decree. Article 22 (Korea Institute for Electronic Commerce) (1) A Korea Institute for Electronic Commerce (hereinafter referred to as the "KIEC") shall be established for the efficient and systematic implementation of projects and businesses to promote electronic commerce as well as to support the development of policies related to electronic commerce. (2) The KIEC shall be a juristic person. (3) The KIEC shall conduct the following projects with respect to electronic commerce: 1. Domestic or world-wide survey and research, and businesses for publishing, public relations and promotions; 2. Institutional research and other businesses for creating environments suitable for the promotion of electronic business; 3. Research and development of information standards, distribution and activity of international standards in accordance with Article 24; 4. Projects for supporting the development of information technology under Article 25; 5. Projects for Certification to an excellent electronic commerce businessmen as prescribed Article 18; 6. Projects for international exchanges and cooperation to promote electronic commerce in accordance to Article 29; 7. Operation of the Korea EDI Committee under Article 23 (2); and 8. Operation of the Electronic Commerce Mediation Committee as prescribed Article 32; 9. Other businesses entrusted by the Minister of Commerce, Industry and Energy or the heads of the relevant central administrative agencies. (4) The KIEC may conduct a profitable projects under the conditions as prescribed by the Presidential Decree to supply necessary expenses for attainment of an object pursuant to paragraph (1). (5) The Government may support the whole or part of the expenses for operating of the KIEC within the limit of the relevant budget. (6) The KIEC may be contributed money from the businessman of electronic commerce to appropriate for necessary expenses for the operation or business performance of

9 KIEC. (7) The KIEC may collect fees from the persons who use the information standards developed by itself, under the conditions as prescribed by the Presidential Decree. (8) The relevant provisions of the Civil Act with respect to the foundation shall apply mutatis mutandis to the KIEC except as otherwise provided by this Act. (9) The relevant provisions of the Civil Act with respect to the foundation shall apply mutatis mutandis to the KIEC except as otherwise provided by this Act. CHAPTER PROMOTION OF ELECTRONIC COMMERCE Article 23 (Promotion of using electronic messages) The Government shall formulate and implement necessary policies for the consolidation of concerning Acts etc, to promote the use of electronic messages. Article 24 (Standardization of Electronic Commerce) (1) The Government shall implement the following measures in order to the efficient operation of electronic commerce and to the guarantee of interchangeability of related information technologies: 1. Establishment, revision, repeal and distribution of standards with respect to electronic messages; 2. Research and development of domestic and foreign standards relating to electronic commerce; and 3. Other matters necessary to standardize electronic commerce. (2) The Korea EDI Committee shall be established pursuant to the Presidential Decree in the Ministry of Commerce, Industry and Energy so as to research, deliberate and decide the standardization of electronic messages as prescribed in paragraph (1) 1. (3) The Government may, if necessary for the efficient implementation of the matters as set forth in each subparagraph of paragraph (1), have the relevant research institutes and non-government organizations act on its behalf. In this case, it may support the required expenses to them in accordance with the Presidential Decree. Article 25 (Development of Information Technology for electronic commerce) The Government shall perform the following measures in accordance with the relevant Acts and subordinate statutes so as to develop the information technology necessary to promote electronic commerce and to enhance technology standards:

10 1. Research of technical standards for electronic commerce, research and development of information technology and practical use of the developed technology; 2. Cooperation with respect to the technology of electronic commerce, the direction and the transfer thereof; 3. Smooth distribution of technology information and industrial - educational - researchable cooperation on electronic commerce; and 4. Other necessary matters for the development of technology of electronic commerce. Article 26 (Education of special human resources for electronic commerce) (1) The Government shall try to educate professional human resources necessary to the promotion of electronic commerce. (2) The Government may support the whole or part of the expenses necessary for operating the business to train special human resources that research institutes including a research institute which is appropriated by the Government etc, under the act on the establishment, operation and fosterage of Government Invested research Institutions and universities pursuant to the higher education Act as well as non-government organizations and other relevant organizations in accordance with paragraph (1). (3) Any necessary matters concerning the support of expenses for special human resource education institutes of electronic commerce in accordance with paragraph (2) shall be prescribed by the Presidential Decree. Article 27 (Promotion of electronic commerce for public sectors) The Government agency, local self-governing bodies, government investment agencies or public organizations etc,. (hereinafter referred to as the "The Government agency, etc.") shall formulate and implement programs so as to conduct businesses of agency as electronic commerce or procurement of goods or services necessary in operation of the business. Article 28 (Electronic Commerce Statistics etc, a fact-finding survey) (1) The Minister of Commerce, Industry and Energy may conduct electronic commerce statistics etc, a fact-finding survey so as to the effective formulation and implementation of electronic commerce promotion policies. In this case, Statistics Act shall apply when electronic commerce statistics intends to be generated. (2) The Minister of Commerce, Industry and Energy may require a presentation of related materials or a statement of opinions to the Government agencies, electronic commerce businessmen or juristic persons and organizations related to electronic commerce if necessary for the fact-finding survey including electronic commerce

11 statistics etc., in accordance with paragraph (1). (3) Where they are required to the presentation of related materials etc, pursuant to paragraph (1) from the Minister of Commerce, Industry and Energy, the Government agencies, electronic commerce businessmen or juristic persons and organizations related to electronic commerce shall cooperate positively with such the demand. (4) Any necessary matters concerning the performance of the fact-finding survey, electronic commerce statistics etc., shall be prescribed by the Presidential Decree. Article 29 (Internationalization of Electronic Commerce) (1) The Government may support the projects or businesses for exchanges of the relevant information, technology and manpower, joint research and development and technical cooperation as well as international standardization, etc. so as to promote the international cooperation with respect to electronic commerce. (2) The Government shall make an effort to facilitate launching into foreign market of electronic commerce businessmen as well as to cope with and participate in a controversy of international organizations related to electronic commerce. Article 30 (Electronic Commerce Support Center) (1) The Government shall formulate and implement necessary policies to promote electronic commerce of small and medium enterprises. (2) The Minister of Commerce, Industry and Energy may, for the purpose of promoting electronic commerce of small and medium enterprises, designate any institute which conducts businesses for supporting education and training, technical guidance, management consultation and information provision, etc. as the Electronic Commerce Support Center (hereinafter referred to as the "ECSC"). (3) Any necessary matters concerning the designation of the ECSC, criteria for the withdrawal of such designation, report for the achievement of promotion programs and support of expenses etc., shall be set forth in the Presidential Decree. Article 31 (Support for promotion of electronic commerce) (1) The State or the local government may grant the preferential taxation treatment such as regulation of tax reduction and exemption Act and Local Tax Act etc., pursuant to tax-related Acts in order to promote electronic commerce. (2) The Government may support part of the expenses therefor to the limit of the relevant budget if any juristic person or organization related to electronic commerce performs a project which is prescribed by the electronic commerce promotion program.

12 CHAPTER ELECTRONIC COMMERCE MEDIATION COMMITTEE Article 32 (Establishment and Composition of Electronic Commerce Dispute Mediation Committee) (1) A Electronic Commerce Dispute Mediation Committee (hereinafter referred to as the "Dispute Mediation Committee") shall be established to mediate any dispute over Electronic Commerce. (2) The Committee shall consists of not less than fifteen but not more than fifty members including one chairman. (3) The members shall be appointed or commissioned by the Minister of Commerce, Industry and Energy from among the persons falling under any of the following subparagraphs, and the chairman shall be elected from among the members. 1. Persons who presently serve or have served in universities as associate professors or higher and in publically recognized research institutes as researchers with their positions corresponding to the former and majored in a field relating to electronic commerce; 2. Public officials of Grade IV or higher or persons who presently work or have worked in public institutions with their positions corresponding to the former and have experiences in dealing with the affairs of electronic commerce; 3. Persons who holds qualifications of judges, prosecutors, or attorneys-at-law; 4. Persons recommended by nonprofit nongovernmental organizations established pursuant to Article 2 of the Assistance for Nonprofit Non-governmental Organizations Act; 5. Other persons who have knowledge and experience in dealing with electronic commerce and dispute mediation. (4) The members of the Committee shall be non-standing, and the terms of office for the members shall be 2 years and they may be reappointed or recommissioned. (5) A secretariat shall be established in the Korea Institute for Electronic Commerce pursuant to Article 22 to support the Dispute Mediation Committee's affairs. (6) Any necessary matters for the qualification of the members and the guarantee of their status as well as the exclusion, exception and refrainment of the members shall be determined by the Presidential Decree. Article 33 (Mediation of Dispute) (1) Any person who wants to refer any dispute conciliation and loss redemption over the electronic commerce may request a mediation

13 of the dispute to the Committee. (2) The Committee shall, upon receiving an application for mediating a dispute under paragraph (1), advise to parties involved in the dispute and make out a draft mediation within 45 days from the date of receiving such application: Provided, That if there are unavoidable circumstances for extending the period, the Dispute Mediation Committee shall notify to parties involved in the dispute and specify the reason and period for extending. (3) The Committee may commit the department of mediation which is composed of within three members to the mediation of dispute, if necessary matters for the mediation of dispute in accordance with paragraph (2). Article 34 (Request for Materials, etc) (1) The Dispute Mediation Committee may ask parties involved in a dispute or relevant witnesses to provide materials necessary to mediate the dispute. In this case, the relevant parties shall comply with the request unless the justifiable grounds exist that make it impossible for them to do so. (2) The Committee may, when it is deemed necessary, get parties involved in a dispute or relevant witnesses to be present at a meeting of the Dispute Mediation Committee to hear their opinions. Article 35 (Effect of Mediation) (1) The Mediation shall be concluded in cases falling under any of the following subparagraphs: 1. Where parties involved in the dispute shall agree to a mediation recommendation in accordance with Article 33 (2). 2. Where parties involved in the dispute shall submit a written agreement for the mediation which is made by themselves in the Committee. (2) The committee shall prepare a written mediation and the parties involved in the dispute shall subscribe their names thereto and affix their seals thereon in case of paragraph (1). (3) The written agreement for the mediation under paragraph (2) shall have the full force and effect of a mutual agreement between parties. Article 36 (Rejection and Suspension of Mediation) (1) The Committee shall give parties involved in the dispute a notice that the mediation has been rejected and suspended in cases falling under any of the following: 1. Where an application of dispute mediation shall be withdrawn or any side of parties involved in the dispute shall decline the mediation of dispute.

14 2. Where parties involved in the dispute shall reject the mediation plan of the committee. 3. Where filed a lawsuit in a law court to the dispute mediation case. 4. Where it is deemed that it is inappropriate for the committee to mediate the case in the light of its nature. Article 37 (Expenses for Mediation, etc.) (1) The Committee may bear the expenses for mediation to parties who are applied for the dispute mediation pursuant to the Presidential Decree. (2) The Government may contribute or subsidize the expenses necessary for the operation of the Committee within the scope of the budget. Article 38 (Operation of the Committee) With the exception of what is prescribed in Articles 36 through 39, necessary matters concerning the operation of the Committee and the mediation department as well as the procedures for mediating any dispute, etc. shall be prescribed by the Presidential Decree. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 39 (Delegation and Entrustment of Authorities) Part of authorities of the Minister of Commerce, Industry and Energy under this Act may be delegated to the heads of organizations under his control or local governments, or entrusted to the heads of the relevant central administrative agencies in accordance with the Presidential Decree. Article 40 (Reciprocity) This Act shall be applied to individuals and juristic persons of foreign states: Provided, That individuals and juristic persons of any foreign state which does not grant counterparts of the Republic of Korea the protection equivalent to that under this Act may be granted the correspondingly restricted extent of the protection under this Act or said international treaties in the Republic of Korea. ADDENDA Article 1 (Enforcement Date) This Act shall enter into force on July 1, 2002.

15 Article 2 (Transitional Measures concerning Designation of Electronic Commerce Support Center) The institution which has been designated as an Electronic Commerce Support Center in accordance with previous Article shall be deemed to be designated as the ECSC in accordance with Article 30 (1) hereof. Article 3 (Relation with other Acts) If other Acts and subordinate statutes cite the former framework Act on Electronic commerce or the provision at the time this Act enters into force, this Act or the corresponding provisions in this Act shall be regarded as being cited. Source: Accessed in 03/2007