The State Administration of market supervision and administration of the peoples Republic of China has promulgated the measures for the supervision and administration of online transactions (Draft for comments) (hereinafter referred to as the draft for Soliciting Opinions), which is the second time for the measures to solicit opinions after April 30, 2019. Compared with the previous draft, the content of the draft has been greatly revised.
The drafting note pointed out that one reason for the substantial revision was to focus on the practical needs of standardized management in such fields as online social networking and online live broadcasting in combination with the new trends of online trading formats during the epidemic period.
In addition, there are detailed responses in the draft for comments on such key issues as how to determine the sporadic small transactions exempted from the registration of market entities, whether malicious bad comments can be deleted, and one out of two of the platform.
Regulation of live broadcast E-commerce
Wechat business and live delivery have already become important e-commerce formats, but there are no special provisions in the previous draft.
In this regard, the draft provides that these Measures shall be applicable to the business activities of selling goods or providing services in online social networking, live network broadcasting and other information network activities.
As the e-commerce law does not directly stipulate whether the online social networking and live network service providers belong to the platform operators, the drafters of the draft think that the specific analysis should be combined with the actual situation of such new online transaction formats. Therefore, it is clear that other network service providers, such as online social networking and network live broadcast, should fulfill the responsibilities of network trading platform operators according to law when meeting certain conditions.
These conditions include: providing business space for operators, and providing supporting services related to the completion of transactions such as commodity browsing, order generation, online payment, etc.
Tiktok and Kwai Fu, which are the providers of the above services, are required to assume the responsibilities of the e-commerce platform. The responsibility is focused on the following aspects: the qualification examination of the operators, the monitoring of goods and services, the protection of consumers rights and interests, the protection of intellectual property rights, the provision of information and data, and the supervision and enforcement of the law. WeChat
Not long ago, the State Administration of market supervision formulated the guidance on strengthening the supervision of live network marketing activities (Draft) (hereinafter referred to as the draft) for public comments.
Or two types of online trading services are provided for business operators to carry out online trading activities, or the other is to provide online trading services for both parties Technical service. These two types of platforms are required to fulfill the responsibilities and obligations of e-commerce platform operators in accordance with the provisions of the e-commerce law.
In reality, tiktok is more traditional than the traditional platform, such as Taobao and Jingdong. It has a live broadcasting function. The second type of platform is more than a platform, such as jitter, Kwai, and the main link, when it comes to goods, it will access the third party e-commerce platform.
Besides Kwai tiktok, some professional anchors will also carry out promotional activities according to their needs. Xue Jun, vice president of Law School of Peking University, believes that in the face of this situation, we should determine what kind of legal responsibility the platform should bear according to the specific behavior of the platform.
The ecology of each platform is extremely complex, so it is necessary to deeply and carefully analyze its organizational mode and corresponding legal relations. It is unrealistic to deny that it is an e-commerce platform, and it is not objective to put a cap on it. It should be a flexible mechanism. No matter how complex the reality is, the logic of legal liability should be the consistency of responsibility, power and interest. Xue Jun told the 21st century economic reporter.
How to define small sporadic transaction
The other type of e-commerce entities specified in the draft are small and sporadic transactions and convenient labor service activities. According to the e-commerce law, these two types of subjects do not need to register as market entities.
It is very important to determine the clear criteria for these two types of subjects, because this is about the exemption of the registration of the main body in the e-commerce market. If it is not clear, it is difficult to carry out law enforcement in practice. Yao Zhiwei, executive director and professor of Guangdong University of Finance and economics, said.
According to the draft, sporadic small transactions refers to that the annual transactions of network transaction operators do not exceed 52 times, and the annual transaction volume does not exceed the average annual wage of employees in urban private units in the province, autonomous region and municipality directly under the central government in the previous year. If the same operator opens more than one online store on the same platform or on different platforms, the annual transaction times and annual transaction volume of each online store shall be calculated together.
How to determine the standard of sporadic and small amount is a lot of thinking. At present, the existing laws and regulations in the field of Internet do not have the concept of small amount, but there is a concept of small amount of litigation in the current civil litigation system. According to the civil procedure law, the target amount of small claims is less than 30% of the average annual wage of the employees in each province, autonomous region and municipality directly under the central government in the previous year. The drafters believe that this is highly consistent with the legislative spirit and normative logic of the concept of sporadic small amount created by the e-commerce law.
The drafting notes also pointed out that in Beijing, Shanghai, Guangzhou, Hangzhou and other first tier and second tier cities where network transaction operators are concentrated, the income level of urban private sector employees is often higher than that of all employees, so that the standard can be realized as high as possible in a larger scope.
It is worth noting that the relationship between fragmentary and small amount is and. If it is understood as or, it includes sporadic but large transactions (such as sporadic sales of gold and jewelry, luxury goods, etc.) and small but not sporadic transactions (such as a large online shop with a mobile phone case of 9.9 yuan, with an annual sales of one million pieces).
The drafting notes pointed out that the exemption from registration of the above two types of operators obviously does not meet the basic requirements of maintaining the security of online transactions and protecting the legitimate rights and interests of consumers, and will also bring about many problems such as discriminatory management treatment on and off-line.
It is very important to determine a scientific and reasonable criterion. Some data show that on some mainstream e-commerce platforms, the vast majority of sellers annual transaction volume is less than 60000 yuan. Whether the criteria are higher or lower tests the drafters, because the regulatory and operating costs of market registration are very high. Yao Zhiwei told the 21st century economic report.
According to the draft, the convenient labor service activities referred to in the e-commerce law refer to the business labor activities serving the local residents living nearby, mainly including cleaning, kitchen agent, washing, sewing, hairdressing, moving, key preparation, pipeline dredging, home appliances and furniture repair and repair, etc.
Its questionable that its only limited to serving the local neighborhood , which excludes the labor activities such as optimizing PPT and modifying homework for others through the Internet. Yao Zhiwei thinks.
Forbid platform choose one from two
With the double 11 approaching, the issue of one out of two frequently occurring during the promotion period has also attracted the attention of the draft.
According to the draft, operators within the platform can choose to carry out business activities on multiple platforms. Matters related to the establishment or change of exclusive business cooperation relationship between the platform and the operators within the platform shall be conducted on an equal basis through fair negotiation, and the cooperation conditions, obligations of both parties and liability for breach of contract shall be clearly agreed in written form. The platform shall not be forced to level by unreasonable means of searching and lowering rights, removing goods from shelves, restricting operation, shielding stores and raising service charges Accepted by Taiwan operators. If the platform proposes to establish or change the exclusive business cooperation relationship, which causes losses to the operators in the platform, the platform operators shall be reasonably compensated.
However, for the violation of this provision, the penalty set up in the draft is to order correction within a time limit and impose a fine of more than 10000 yuan and less than 30000 yuan.
In practice, it is difficult to prove whether the platform has taken unreasonable measures, such as whether the search power reduction is caused by human or technical reasons, and there may even be black box of algorithms Yao Zhiwei said.
Illegal evaluation can be dealt with technically
The draft also improved the deletion evaluation. Article 39 of the e-commerce law stipulates that the operator of an e-commerce platform shall not delete the consumers evaluation of the goods sold or services provided on the platform, without any exception.
In the process of drafting, some people think that the platform is not allowed to delete the provisions of consumption evaluation, and the deletion needs of malicious bad comments, insulting and defamation and other harmful information are not considered. The drafting notes pointed out that the right to delete malicious bad comments and insulting and defamatory bad information is faced with the major operation problem that the platform operators are difficult to judge and confirm whether they are malicious and bad in practice. It is also understood that in practice, the actual deletion proportion of platform operators is less than 5% when they apply for the platform operators to delete due to the false evaluation. Therefore, as for the issue of platform operators deletion of evaluation authority, the draft for comments insists on being cautious, and stipulates that the platform can technically handle the information that is forbidden to be released or transmitted by laws and administrative regulations contained in consumer evaluation. Source: Qiao JunJing, editor in charge of 21st century economic report_ NBJ11279
In the process of drafting, some people think that the platform is not allowed to delete the provisions of consumption evaluation, and the deletion needs of malicious bad comments, insulting and defamation and other harmful information are not considered.
The drafting notes pointed out that the right to delete malicious bad comments and insulting and defamatory bad information is faced with the major operation problem that the platform operators are difficult to judge and confirm whether they are malicious and bad in practice. It is also understood that in practice, the actual deletion proportion of platform operators is less than 5% when they apply for the platform operators to delete due to the false evaluation.
Therefore, as for the issue of platform operators deletion of evaluation authority, the draft for comments insists on being cautious, and stipulates that the platform can technically handle the information that is forbidden to be released or transmitted by laws and administrative regulations contained in consumer evaluation.