How To Protect The Balance Of Power Between Consumers And Consumers?

According to the world clothing shoes and hats network, in March 5, 2000, the Shanghai delegation, the representative of the Shanghai delegation, proposed the "call for the formulation of electronic commerce law", which became the first motion of the three meeting of the nine NPC.

Over the past decade or so, both the academia and the industry have been calling for similar calls.

In December 2013,

The law is included in the legislative plan of the twelve NPC Standing Committee, and the NPC finance and Economics Commission has led the establishment of a drafting group to initiate legislation on e-commerce law.

In December 19, 2016, the draft Electronic Commerce Law (hereinafter referred to as "draft") was submitted to the twenty-fifth session of the Standing Committee of the twelve National People's Congress for the first time.

Yin Zhongqing, deputy director of the Standing Committee of the National People's Congress and the drafting and leading group of the e-commerce law, heard the most common reflection in the legislative investigation, that is, "barbarous growth".

During the "12th Five-Year" period, China's e-commerce grew at an average annual rate of over 30%, and in 2012, 2013 and 2014 almost reached 50%, 2015 increased by more than 30%, and in the first 11 months of 2016, it grew by 27%.

In 2015, online retail sales of physical commodities accounted for 11% of the total retail sales of consumer goods in the whole country, and nearly 13% in the first 11 months of 2016.

The draft defines e-commerce as a business activity that deals with goods or services through Internet and other information networks.

The information network includes the Internet and the mobile Internet; commodity pactions include tangible product pactions and intangible product pactions (such as digital products); service pactions refer to service products pactions; business activities refer to business activities for profit purposes, including the above paction, service pactions and related auxiliary business activities.

How to protect the balance of power between consumers and consumers?

When the panel deliberated, Xu Xianming said that the electricity supplier has brought great convenience to the masses' consumption. The enthusiasm of consumers in legislation should be very high, but the reality is that the third party platform of e-commerce and the operators of e-commerce are more motivated.

"E-commerce third party platform and e-commerce operators want to make this Law and regulate themselves quickly?" no, they first think of protecting themselves.

Xu Xianming said, therefore, the formulation of e-commerce law should consider the balance between the rights of e-commerce third party platforms and e-commerce operators and the rights of consumers. If this balance can not be maintained, excessive protection of e-commerce, and excessive channels for them to open up, is unfair to consumers.

Wan Exiang, vice chairman of the Commission, takes the fifty-third rule of the draft as an example, pointing out that the article focuses on protecting the third party platform and e-commerce operators of e-commerce, but has not intensified efforts to protect consumers.

The article stipulates that the main body of e-commerce business shall protect intellectual property rights and establish rules for the protection of intellectual property rights.

The e-commerce third party platform knows that the e-commerce operators of the platform infringe on intellectual property rights. They should take necessary measures such as deleting, shielding, breaking links, terminating pactions and services according to law.

"Generally, in civil law, there is a very important concept besides knowing well, which can increase the responsibility of the electricity supplier or seller, that is, we should know."

Wan e Xiang explained that for example, the above products have been marked "high imitation", and at a very low price, much lower than the normal brand price, to deceive consumers to click, the e-commerce third party platform "should know".

Wan Exiang said that if the concept of "ought to know" is added to the regulations, it will increase the responsibility of the seller and the electricity supplier, so as to play a specific role in protecting consumers.

"For this law, the protection of consumers' rights and interests should be the first priority."

Fu Ying said that e-commerce is a particularly good new format. What is most troubling now is the problem of dishonesty. False or dishonest will destroy everything.

She believes that this law should seize the core issues, solve or at least promote e-commerce activities in the direction of integrity.

According to He Yehui, the core issue in the development of e-commerce law is how to protect the rights and interests of consumers after the dispute, through which channels to solve the problem of counterfeiting and shoddy, and who will pay for the damage after the product is damaged.

He Yehui said that the settlement of disputes involves production enterprises, operators and third party platforms as well as logistics companies.

Once occurred

The question is whether consumers are looking for manufacturers or selling goods, or are they looking for deliveries?

The sixty-third clause of the draft stipulates that disputes between the parties involved in e-commerce activities can be settled through consultation and conciliation, requiring consumers' organizations, trade associations or other mediation organizations established according to law to mediate, lodge complaints with the relevant departments, submit arbitration to arbitration institutions, or bring a lawsuit to the people's court.

He Yehui pointed out that for consumers, the above problem solving channels, on the surface, there are many ways, the road is very wide, but after a real problem, they may not know who to go.

The fifty-eighth provision of the draft stipulates that consumers who purchase goods or receive services through the third party platform of electronic commerce and whose legitimate rights and interests are damaged may demand compensation from commodity producers, sellers or service providers.

The third party platform of electronic commerce can not provide consumers with the real name, address or other effective contact modes of the operators in the platform. Consumers can claim the third party platform of the electronic commerce first to compensate for it. After the payment of the third party platform to consumers, the consumers have the right to recover the business from the operators in the platform.

Mo Wenxiu pointed out that the above provisions stipulate the statutory first compensation liability of the third party platform for e-commerce, but only limited to the fact that the real name, address or other effective contact method of the platform operator can not be provided to consumers.

"Whether this regulation is beneficial to timely and effective protection of consumers' rights and interests is conducive to strengthening the supervision and management of the third party platform of e-commerce, and it is worth considering."

Mo Wenxiu suggested that we should further study the responsibility of the third party platform to assume statutory first compensation, and strive to achieve equal rights and obligations.

Hou Yibin said that according to the practice of e-commerce in recent years, he believed that the fifty-eighth provision could not effectively protect the interests of consumers, and should make greater amendments.

"In practice, there are some problems, e-commerce platform often pushes responsibility to merchants, and consumers are very difficult to obtain compensation or accountability for merchants."

Hou Yibin said.

For example, one of his colleagues bought two books from an electronic business platform, but he paid two books for his colleagues the other day. His colleagues found the platform and asked why, but they were told to find a bookstore.

"Book money is platform buckle, why let consumers go to bookstores? In accordance with the current provisions of the draft, we first require consumers to pursue responsibility to merchants of the third party platform, in practice, consumers are hard to complete."

Hou Yibin said.

Therefore, he suggested that the protection of consumers' rights and interests should be increased, and the fifty-eighth item should be amended as follows: producers and sellers of goods should be responsible for the quality of the commodities they provide, and the service providers should be responsible for the quality of service provided by them.

When consumers purchase goods or receive services through the third party platform of electronic commerce, their legitimate rights and interests are damaged. The e-commerce platform is the first responsible person, and the consumers should be compensated first and at the same time.

Producers, sellers or service providers pursue responsibility and demand compensation.

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Which department does the electricity supplier belong to?

Yin Zhongqing believes that the difficulty of e-commerce legislation is how to deal with the relationship between the relevant departments at all levels.

The draft electronic commerce law does not stipulate the competent departments of e-commerce, but stipulates "relevant departments", and stipulates a "comprehensive coordination mechanism for e-commerce management".

In this regard, Yin Zhongqing pointed out that electronic commerce involves many departments of the State Council, involving the Ministry of industry, the General Administration of radio and television, and the network letter office from the basic carrier, involving the Ministry of Commerce, the General Administration of industry and commerce, and the tax, quality supervision and standards from the paction process.

"How can these departments coordinate well?"

Yin Zhongqing said that although the tourism law involves multiple industries and departments, the National Tourism Administration is the competent department, and e-commerce can not find a competent department, nor can it set a competent department. There will be many difficulties in law enforcement.

How to play a good role in the supervision of the relevant state organs is to solve the problem of no one's control and solve the problem of competition. This is a difficult problem.

In the chapters of the draft regulation and legal responsibility, the relevant departments are basically used.

Wan Exiang believes that such a rule, in the future will appear when the responsibility to kick the ball, when we encounter the interests of everyone to grab the phenomenon.

Wan e Xiang suggested that in order to protect the rights of consumers, it should be clear that the most important regulators in the whole process of operation are the business administration departments, mainly in business administration, supplemented by other departments such as taxation, network letters, business, and industry, because the consumer association is located in the Department of business administration, and the direct responsibility and rights relationship is more clear.

Are all online shops registered or registered?

The draft stipulates that the main body of electronic commerce shall handle industrial and commercial registration according to law, except that the personal skills provided by law do not require permission to provide labor services, family handicraft industry, the self production and sale of agricultural products, and the need for industrial and commercial registration in accordance with laws and regulations. The specific measures shall be prescribed by the State Council.

"The entity store has a heavy burden. If some shops fail to register, there will be some injustice on registration.

There are also loopholes in revenue. "

In the group deliberation, Li Lianning said that from the present point of view, the merger of industrial and commercial registration and tax registration through the network has been greatly simplified and free of charge, and registration is not too difficult.

Li Lianning also said that the development of electronic commerce is very fast. We must carry out top-level design in the long run. We must not forget that it will be too late to control the future because it has already opened a hole in the law.

Therefore, he thinks that the main body of e-commerce should be treated equally, and business registration should be conducted according to law.

In Xu Xianming's view, fair competition is the life of the market economy, while e-commerce has reduced circulation, storage, booth and other links, and has a competitive advantage for traditional operators.

"If the registration is given preferential treatment or even not registered, it is unfair to design the system and violate the law of market economy".

Lv Zushan, deputy director of the NPC finance and Economics Committee, member of the Standing Committee of the National People's Congress and head of the drafting group of the electrical law drafting group, said in the panel's deliberations that the current regulation is "Co ordinating opinions with the relevant departments".

Lv Zushan pointed out that with the development of e-commerce, there are more and more online shops with registration conditions. However, considering that a large number of labor service providers are difficult to obtain employment at the age of forty or fifty, and agricultural products are difficult to sell, it is very beneficial for them to exclude them from the scope of industrial and commercial registration.

Lv Zushan said that the issue of industrial and commercial registration has always been the focus of controversy since the drafting of legislation and the formation of a draft.

According to the provisions of the SAIC on e-commerce, the online shop of natural persons should register the real identity information on the platform, and if the conditions are available, it can be registered by industry and commerce.

"According to the above provisions, we have done many surveys, and found that a large number of natural persons shop is small, such as farmers who grow watermelons and grapes at home, do not sell them for two months, and sell walnuts and dates in the western mountainous area, and they do not sell them in two months."

Lv Zushan said that the rural area is the weak link of the electricity supplier, and how to make the convenience for the rural business to be bought and sold should be considered.

He also said that there are many services which are second occupations of some people, such as housekeeping services for cleaning and cleaning glass after work. These people are forty or fifty years old, making it difficult for them to obtain employment. It is not good to earn two thousand or three thousand yuan a month by providing housekeeping services online.

"There are still some college students and some disabled people who do not find jobs. They are familiar with an industry and sell goods temporarily. This is very beneficial to promoting employment.

With the development of electronic commerce, there are more and more online shops with registration conditions. "Do you want all of these people to go all the way?" Lu said that the final consideration is no "one size fits all".

"Of course, we can consider that when the main business entities are registered in the industrial and commercial sector, they can be settled by means of electronic registration, or if there are some small and unsustainable ones, they should be filed at least by the third party platform to the industrial and commercial tax authorities to fully grasp all the business activities in the field of e-commerce."

Li Lianning said he suggested that overall consideration should be given to registration, which could simplify procedures or implement filing system.

Lv Wei also agreed with the "no one size fits all" rule, but she suggested that the current regulations be amended.

Since the draft stipulates that "there is no need for industrial and commercial registration in accordance with laws and regulations", it is recommended not to specify which circumstances do not need to register, but may be changed to "but, in accordance with laws and regulations, there is no need for industrial and commercial registration. Specific measures shall be formulated by the State Council".

"The provisions of the State Council can be adjusted according to the actual situation, and the regular adjustment of the law is not appropriate."

Lv Wei said.

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