The USA Journals Volume 03 Issue 12-2021
113
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 30, 2021 |
Pages:
113-117
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-17
I
MPACT
F
ACTOR
2021:
5.
952
‘
ABSTRACT
This article discusses the provisions of the legislation of the Republic of Kazakhstan, the Republic of
Uzbekistan and foreign states that regulate relations between business participants in the
implementation of transactions in electronic form. Currently, all over the world, there is a
development of electronic commerce, using "electronic transactions", defined in business by
"electronic contracts". When considering the legal regulation of "electronic contracts", it should be
noted that the legislation governing the field of electronic document management in business
activities needs to be finalized taking into account the requirements of the time and the emerging
practice of using "electronic contracts". It should be noted that e-commerce has the potential to
become a leading type of entrepreneurial activity in the future. It should be emphasized that the
Republic of Kazakhstan does not have a Law on Electronic Commerce. In our opinion, such a law is
necessary in the Republic of Kazakhstan, since at present there is a widespread digitalization of civil
circulation. The adoption in the Republic of Kazakhstan of the Law "On Electronic Commerce" will
provide an opportunity for a more complete regulation of legal relations of business entities on the
conclusion of contracts in electronic form.
KEYWORDS
Law, Electronic Document, Electronic Transaction, Will, Expression Of Will, Electronic Agreement,
Electronic Contract, Business, Legal Relations, E-Commerce.
Aspects Of Legal Regulation Of Electronic Transactions
Carried Out By Business Entities
Allayarova Nargiza Imamnazarovna
Teacher Of South Kazakhstan University Named M.Auezov, Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 12-2021
114
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 30, 2021 |
Pages:
113-117
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-17
I
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F
ACTOR
2021:
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952
INTRODUCTION
Currently, all over the world, there is a
development of electronic commerce, using
"electronic transactions", defined in business
by "electronic contracts". When considering
the legal regulation of "electronic contracts", it
should be noted that the legislation governing
the field of electronic document management
in business activities needs to be finalized
taking into account the requirements of the
time and the emerging practice of using
"electronic contracts". It should be noted that
e-commerce has the potential to become a
leading type of entrepreneurial activity in the
future.
Considering the question of what should be
understood by "electronic transactions" and
"e-commerce" I would like to start with a quote
from K.G. Borisova: “the use by states of the
achievements of scientific and technical
development ... Is pushing out traditional
forms of trade” [1].
When writing the article, we considered the
provisions of the legislation of the Republic of
Kazakhstan, the Republic of Uzbekistan and
foreign states that regulate relations between
business participants in the implementation of
transactions in electronic form.
In the process of researching normative legal
acts, we applied general scientific methods and
specific scientific methods. General scientific
methods of cognition: analysis and synthesis,
induction and deduction, analogy and
modeling. Private scientific methods: formal -
logical, comparative.
In our opinion, first of all, it is necessary to
consider the essence of the transaction itself,
disclose it as a legal fact and also determine its
location in the system of legal facts according
to the formed classification.
O.A. Krasavchikov proposed to divide legal
facts into events and actions; actions - on
lawful and illegal; lawful actions - on legal acts
and legal acts; at the same time, transactions
were considered as a kind of legal acts [2].
From the fundamental provisions of the theory
of transactions, it follows that the will and
expression of the will when concluding a
certain transaction must coincide. Article 102 of
the Civil Code of the Republic of Uzbekistan
and Article 148 of the Civil Code of the Republic
of Kazakhstan stipulate that, upon the
expression of the will of the party or parties, a
certain transaction is made.
Will and expression of will must necessarily
coincide. This point of view is substantiated by
such scientists as O.A. Krasavchikov, M.M.
Agarkov, V.A. Musin, O.S. Ioffe, F.S. Heifetz,
A.M. Belyakov. They point out that the main
condition for the validity of a transaction is that
legislation implies the coincidence of will and
will, it follows that in cases of discrepancy
between the will of the parties and their
expression of will, it becomes necessary to
recognize a certain transaction as invalid.
“Both of these elements are absolutely
necessary and equal. The essence of the deal
lies only in their unity. Absence of any of these
elements means the absence of a deal ”[3].
As a basic provision, Article 107 of the Civil Code
of the Republic of Uzbekistan and Article 152 of
the Civil Code of the Republic of Uzbekistan
provide that a certain transaction in writing
must be carried out by drawing up a written
document showing its necessary content and
The USA Journals Volume 03 Issue 12-2021
115
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 30, 2021 |
Pages:
113-117
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-17
I
MPACT
F
ACTOR
2021:
5.
952
must be signed by the person or persons
carrying out the transaction, and in the
necessary cases by persons duly authorized by
them. The document can be paper or
electronic, since both options for its design
represent a certain verbal expression of the
will of all parties.
According to Article 101 of the Civil Code of the
Republic of Uzbekistan and Article 147 of the
Civil Code of the Republic of Kazakhstan, any
actions of citizens and legal entities that are
aimed at the emergence, certain change or
complete termination of civil rights and their
obligations are considered transactions. A
transaction is considered a certain lawful
action, a legal fact. It follows from this that the
concept of "electronic transaction" has a
conditional meaning, showing the specifics of
the form of being a transaction. In view of this,
the following conclusions are determined:
firstly: such a concept as an "electronic
transaction" very harmoniously combines two
meanings, on the one hand, it is an "electronic
document", and on the other hand, it is a civil
law transaction; secondly, there is a need for a
legal definition of the concept of "electronic
transaction".
So, by virtue of Article 151 of the Civil Code of
the Republic of Kazakhstan: “transactions are
made orally or in writing (simple or notarized)”
[4], Article 105 of the Civil Code of the Republic
of Uzbekistan: “Transactions are made orally
or in writing (simple or notarized )" [5]. We
would like to draw your attention to the fact
that over time, the differences between simple
and electronic digital form may require urgent
regulation of these forms of transactions.
Currently, there are legal problems in the
implementation of the practice of notarization
of an "electronic document" in the Republic of
Uzbekistan and the Republic of Kazakhstan. I
would like to note that the notarization of the
"electronic document" in the territory of the
Republic of Uzbekistan and the Republic of
Kazakhstan has not yet been carried out and, in
our opinion, there is a need for an early
solution to this issue.
In our opinion, the definition of "electronic
transaction" means a transaction that is made
using certain means of communication and
computer technology, without any preparation
of a document on paper by exchanging
"electronic documents" by the parties, or
signing an electronic digital signature of one
"electronic document ". Each separately of the
named types of transactions has its own legal
regime. "Electronic transactions" are, first of
all, civil transactions regulated by the norms of
the Civil Code of the Republic of Uzbekistan
and the Civil Code of the Republic of
Kazakhstan. In this regard, all subjects of civil
law (both individuals and legal entities and
public entities) have the opportunity to be the
subjects of certain relations when making
transactions in electronic digital form, they are
not subject to special requirements from a
legal point of view and include general
provisions , establishing for certain persons,
their legal capacity and capacity. An agreement
is considered, in accordance with clause 1 of
Article 378 of the Civil Code of the Republic of
Kazakhstan: “an agreement is recognized as an
agreement between two or more persons on
the establishment, change or termination of
civil rights and obligations” [4], Article 353 of
the Civil Code of the Republic of Uzbekistan:
“an agreement is recognized as an agreement
two or more persons on the establishment,
change or termination of civil rights and
obligations ”[5].
The USA Journals Volume 03 Issue 12-2021
116
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 30, 2021 |
Pages:
113-117
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-17
I
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F
ACTOR
2021:
5.
952
It should be noted that in international and
European law governing relations in the field of
information technology, the term "electronic
agreement" is also used. Based on the legal
definition of a civil law contract, it is possible to
formulate the question of the relationship
between an electronic agreement and an
electronic contract. Electronic agreement is a
broader concept. At the same time, such a
statement does not fit into the provisions
(rules) of international law and the law of
individual states. Thus, the UN Center for Trade
and Electronic Business has adopted the
Agreement
on
Electronic
Commerce
(Recommendation No. 31, March 2000,
Geneva). It says: "electronic agreement" sets
out the framework principles for the execution
of subsequent "electronic transactions". In
some cases, an "electronic agreement" gives
the parties a choice between alternatives.
Another example: “an electronic agreement
can be used to complete one transaction or
several transactions. An electronic agreement
must be concluded prior to an electronic
transaction ... ” [6]. In this interpretation, the
definition of "electronic agreement" expresses
a general agreement, which outlines the range
of general rights and general obligations of all
parties to this agreement. At the same time,
clear obligations of all parties, as well as issues
of responsibility for partial and complete
failure to comply with the terms of a certain
"electronic contract" are determined by its
parties in an electronic contract (an electronic
transaction).
From the above, it follows that an "electronic
transaction" made under the guise of an
"electronic agreement" can only be formalized
as an "electronic agreement".
When considering the issue of e-commerce, it
is necessary to note the statement of M.
Boguslavsky:
“e-commerce
should
be
considered as a special form of transactions, in
which their conclusion and execution is carried
out using electronic means of communication.
At the same time, the legal nature of the
relevant transactions remains unchanged, and
they must be regulated by the rules of law
designed to regulate relations of a certain type
(sale
and
purchase,
transportation,
contracting, etc.)” [7].
It should be noted that "e-commerce" is one of
the newly formed types of entrepreneurial
activity. According to article 3 of the Law of the
Republic of Uzbekistan "On e-commerce": "e-
commerce is the purchase and sale of goods
(works, services) carried out in accordance
with
an
agreement
concluded
using
information systems (hereinafter referred to as
an e-commerce agreement)" [8]. From the
above definition, it follows that e-commerce is
a set of types of electronic civil transactions.
It should be emphasized that there is no such
law in the Republic of Kazakhstan. In our
opinion, such a law is necessary in the Republic
of Kazakhstan, since at present there is a
widespread digitalization of civil circulation. In
our opinion, the Law of the Republic of
Kazakhstan "On Electronic Commerce" should
provide for: general provisions that reveal the
idea of the essence of the law, its purpose,
regulated relations, principles of legal
regulation of electronic commerce; legal
regime of electronic documents in e-
commerce;
rights
and
obligations
of
information intermediaries; the rights and
obligations of persons engaged in electronic
commerce; the procedure for concluding and
executing electronic contracts in electronic
The USA Journals Volume 03 Issue 12-2021
117
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 30, 2021 |
Pages:
113-117
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-17
I
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F
ACTOR
2021:
5.
952
commerce. The adoption in the Republic of
Kazakhstan of the Law "On Electronic
Commerce" will provide an opportunity for a
more complete regulation of legal relations
between business entities on the conclusion of
contracts in electronic form.
REFERENCES
1.
International law. Textbook. / Otv. ed.
Yu.M. Kolosov, V.I. Kuznetsov. M., 1994.-
P.441.
2.
Krasavchikov O.A. The theory of legal facts
in Soviet civil law: Abstract of the
dissertation of the candidate of legal
sciences. Sverdlovsk, 1950.- p. 10.
3.
Kheifets F.S. Invalidity of transactions
under Russian civil law. M., 2000.- p. 8.
4.
Civil Code of the Republic of Kazakhstan
(General Part), adopted by the Supreme
Council of the Republic of Kazakhstan on
December
27,
1994
https://online.zakon.kz/document/?doc_id
=1006061&doc_id2=1006061#activate_do
c=2&pos=220;-98&pos2=1988;-98 (date of
access: 20.03.2020).
5.
Civil Code of the Republic of Uzbekistan
(Part One) (approved by the Law of the
Republic of Uzbekistan dated December
21,
1995
No.
163-I)
https://online.zakon.kz/document/?doc_id
= 30421270 & doc_id2 = 30421270 #
activate_doc = 2 & pos = 49; -80 & pos2 =
815; -88 (date accessed: 03/20/2020).
6.
Shamraev A. V. Legal regulation of
information technologies (analysis of
problems and basic documents). Version
1.0. M .: "Statut", "Intertech", "BDC-
press", 2003. -P.273.
7.
Boguslavsky M.M. International private
law. Textbook. M., 2004.- p. 258.
8.
Law of the Republic of Uzbekistan dated
May 22, 2015 No. ЗРУ-385 "On electronic
commerce"
https://online.zakon.kz/document/?doc_id
=39091913#pos= 16;- 58 (date of access:
21.03.2020).
