In order to correctly hear cases of online consumption disputes, protect the legitimate rights and interests of consumers in accordance with the law, and promote the healthy and sustainable development of the Internet economy, on February 15, 2022, the 1864th meeting of the Judgm

About the author

Zheng Xuelin, member of the Adjudication Committee of the Supreme People's Court, president of the First Civil Tribunal; Liu Min, deputy chief judge of the First Civil Tribunal of the Supreme People's Court; Gao Yanzhu, judge of the First Civil Tribunal of the Supreme People's Court.

Understanding and application of "The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Online Consumer Dispute Cases (1)"

Article | Zheng Xuelin, Liu Min, Gao Yanzhu

This article was published in "Chinese Applied Law" Issue 3, 2022

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Summary: "The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Online Consumption Dispute Cases (1)" has been implemented on March 15, 2022. The ministry’s judicial interpretation involves issues such as rights and obligations in online consumption contracts, identification of responsible entities, civil liability for online live streaming, and civil liability for takeout catering. This article explains the main issues in the understanding and application of judicial interpretation.

Keywords: platform economy online consumer dispute format terms no-reason returns webcast

In order to correctly hear online consumer dispute cases, protect the legitimate rights and interests of consumers in accordance with the law, and promote the healthy and sustainable development of the online economy, on February 15, 2022, the Supreme People's The 1864th meeting of the Court's Adjudication Committee adopted the "Regulations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Online Consumption Dispute Cases (1)" (hereinafter referred to as the "Regulations"), which will come into effect on March 15, 2022. This article explains the drafting background, basic principles and main issues of the "Regulations" to facilitate accurate understanding and application in practice.

1 Background of the formulation of the "Regulations"

Since the 18th National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping as the core has attached great importance to the development of digital economy and elevated it to a national strategy. The Fifth Plenary Session of the 18th Central Committee of the Communist Party of China proposed to implement the network power strategy and the national big data strategy. The Fifth Plenary Session of the 19th Central Committee of the Communist Party of China proposed to develop the digital economy, promote digital industrialization and industrial digitization, and promote the deep integration of the digital economy and the real economy. General Secretary Xi Jinping has made important instructions on network governance and platform economy on many occasions. On November 16, 2020, General Secretary Xi Jinping pointed out at the Central Committee’s Comprehensive Law-based Governance Work Conference that the rapid development of new technologies and new applications such as digital economy, Internet finance , artificial intelligence , big data, cloud computing has given rise to a A series of new business formats and new models, but there are still time gaps and blank areas in the relevant legal systems. On March 15, 2021, General Secretary Xi Jinping pointed out at the ninth meeting of the Central Financial and Economic Commission that it is necessary to improve the rules and systems, accelerate the improvement of platform economy laws and regulations, promptly fill in the gaps and loopholes in the rules, and promote the healthy and sustainable development of the platform economy.

In recent years, with the vigorous development of my country's digital economy, online consumption has become the basic consumption method for the public. According to statistics, since 2013, my country has become the world's largest online retail market for many consecutive years. As of December 2021, the number of online shopping users in my country reached 842 million, accounting for 81.6% of the total Internet users. Online retail sales in 2021 reached 13.1 trillion yuan, a year-on-year increase of 14.1%. With the rapid development of the Internet economy, online consumer dispute cases have shown rapid growth, and some new situations and problems have also emerged in judicial practice.

It is against this background that the Supreme People's Court has conducted in-depth research, held multiple symposiums with experts and scholars, consumer representatives, government departments, enterprises and the court system, and publicly solicited opinions from the whole society. After repeated studies and demonstrations On the basis of this, these Regulations are formulated.

2 Principles adhered to in the "Regulations"

In the process of formulating judicial interpretations, we adhere to the following concepts and principles:

First, adhere to the people-centered approach and increase the protection of consumers' legitimate rights and interests. The issue of online consumption concerns thousands of households and the vital interests of the people. In the process of formulating the "Regulations", we always insist on putting the interests of the people first, strive to solve the problems of common concern of the people, strive to make the results of Internet development benefit the majority of the people, and effectively enhance the people's sense of security, gain and happiness. feel.

Second, implement the new development concept of and to promote the healthy and sustainable development of the Internet economy. At present, the digital economy has become an important support for the high-quality development of our country's economy. Promoting the healthy and sustainable development of the online consumer economy is important for consolidating the results of poverty alleviation, promoting the rural revitalization strategy, building a new development pattern with the domestic cycle as the main body and domestic and international dual cycles promoting each other, and constantly realizing the people's desire for a better life. Longing is of great significance. During the formulation process of the "Regulations", attention was paid to balanced protection, properly handling the interests of consumers, e-commerce platforms, operators within the platforms and other parties, so as to provide powerful judicial services and guarantees for the healthy and sustainable development of the Internet economy.

Third, follow the characteristics of online consumption and formulate rules scientifically and rationally. Online consumption has the characteristics of diversification of participating transaction entities, virtualization of the transaction environment, cross-regional transaction space, and formatted contracts. In the process of formulating judicial interpretations, attention should be paid to grasping the rules and formulating judicial rules that conform to the characteristics of online consumption.

Fourth, based on the current situation, reserve space for future innovation. Judicial interpretations adhere to a problem-oriented approach and promptly clarify issues that urgently need to be solved in practice, so as to unify the standards of judgment and respond to the needs of trial practice. At the same time, we also realize that the development of the network economy is changing with each passing day, and new models and new forms are constantly emerging. Judicial interpretations not only focus on solving practical problems based on the current situation, but also pay attention to leaving room for future innovation in the market.

3 Regarding the issue of format clauses in online consumption contracts

Since online consumption is completed in a virtual environment, transaction contracts are generally concluded using format clauses, and consumers generally do not have the opportunity and ability to negotiate contract terms with e-commerce operators. Consumers are in a weak position when it comes to contract formation and usually have to either accept the standard terms or walk away from the deal. In practice, there are cases where e-commerce operators take advantage of their advantageous position to formulate unfair and unreasonable format clauses, infringing upon the legitimate rights and interests of consumers. Therefore, regulating online consumption format terms in accordance with the law, and conducting legality reviews while respecting the principle of freedom of contract is particularly important for safeguarding consumer rights and interests.

Regarding the issue of format clauses, " Civil Code of the People's Republic of China " (hereinafter referred to as " Civil Code "), " Consumer Rights Protection Law of the People's Republic of China " (hereinafter referred to as " Consumer Rights Protection Law ") ) and other laws have stipulated it. In order to further clarify relevant issues and better safeguard the legitimate rights and interests of consumers, the "Regulations" enumerate the more common format clauses in practice that should be deemed invalid according to law, and make basic provisions. Article 1 of the "Regulations" clarifies that if the format clauses provided by e-commerce operators contain the following contents, the People's Court shall determine them to be invalid in accordance with the law: (1) The consignee's signature for the goods shall be deemed to recognize that the quality of the goods complies with the agreement; (2) E-commerce All responsibilities that platform operators should bear according to law shall be borne by operators within the platform; (3) E-commerce operators have the right of unilateral interpretation or final interpretation; (4) Excluding or restricting consumers from complaining, reporting, requesting mediation, and applying for arbitration in accordance with the law. , The right to file a lawsuit; (5) Other content that excludes or restricts consumer rights, reduces or exempts e-commerce operators from liability, increases consumer liability, etc. that is unfair and unreasonable to consumers.

In practice, when consumers sign for goods, they generally do not open the goods to view them in detail, nor do they have time to try them out. However, some format clauses of online consumer contracts unilaterally stipulate that consumers are not allowed to raise quality issues after signing for the goods. This format clause is obviously unreasonable. During the consultation process, some people suggested that for some fresh products, the consignee’s signature for receiving the goods should be regarded as recognition that the quality of the goods complies with the agreement. We believe that even if consumers sign for fresh goods, it does not mean that they have recognized the quality of the goods. If there is evidence that the quality of the goods does not meet the agreement, consumers have the right to demand that the merchants bear corresponding responsibilities.

In addition, regarding the writing of 's blanket clause .According to Article 497 of the Civil Code, any standard clause that unreasonably exempts or reduces the party's liability, aggravates the other party's liability, restricts the other party's main rights, or excludes the other party's main rights is invalid. According to Article 26 of the Consumer Rights Protection Law, operators shall not exclude or limit consumers’ rights, reduce or exempt operators’ responsibilities, or increase consumer responsibilities through standard clauses, notices, statements, store notices, etc. Consumers may not impose unfair or unreasonable regulations, use standard terms, and use technical means to force transactions. Regarding the issue of whether the bailout clause should be written in the format clauses of the Civil Code or the Consumer Rights Protection Law, considering that in terms of format clauses, the provisions of the contract section of the Civil Code and the Consumer Rights Protection Law The provisions are the relationship between general law and special law. If the "Consumer Rights and Interests Protection Law" has special provisions, the provisions of the "Consumer Rights and Interests Protection Law" shall apply. The "Consumer Rights and Interests Protection Law" has special provisions on the invalidity of standard clauses, and this provision shall apply. Therefore, this blanket clause adopts the expression of the "Consumer Rights and Interests Protection Law".

4 Regarding the issue of seven-day no-reason returns

Article 25, paragraph 1, of the "Consumer Rights Protection Law" stipulates that operators sell goods through the Internet, television, telephone, mail order, etc., and consumers have the right to start from the date of receipt of the goods. Returns must be made within seven days without giving reasons, except for the following products: (1) Custom-made products by consumers; (2) Fresh and perishable products; (3) Digital audio-visual products, computer software, etc. downloaded online or unpacked by consumers Commodities; (4) Delivered newspapers and periodicals. The essence of the no-reason return system is to give consumers the right to unilaterally terminate the contract within an appropriate period after the conclusion of the contract. Giving consumers the right to unilaterally terminate the contract is related to the untruthful expression of intentions caused by consumers in a specific transaction due to information asymmetry. Paragraph 1 of Article 25 of the "Consumer Rights and Interests Protection Law" stipulates four exceptions to the application of the no-reason return system, which are mainly based on the need to balance the legitimate interests of operators and are the general standards for the protection of consumer rights and interests by the law. Operators are not prohibited from making commitments to higher consumer protection. In practice, there are situations where e-commerce operators make better promises, such as promising to return goods ordered by consumers without any reason. If an e-commerce operator makes a commitment to return goods without reason for the four excluded commodities, it shall abide by its commitment. Article 2 of the Regulations clarifies this.

The purpose of the "Consumer Rights Protection Law" in establishing a no-reason return system for consumers is to enable online shopping consumers to have the same opportunities to inspect and try out goods as they do when shopping in physical malls, so that they can decide independently whether to make a transaction. According to Article 25 of the Consumer Rights Protection Law, goods returned by consumers must be in good condition. After purchasing the goods, consumers need to unpack and inspect the goods. If the goods returned by consumers must be unopened, then the no-reason return system will lose its meaning to a certain extent. However, in practice, there are e-commerce The operator refuses the consumer’s right to return the product without reason on the grounds that the product has been opened. We believe that consumers have the right to return goods without any reason as long as the integrity of the goods is not affected when it is necessary to inspect the goods. Foreign legislation also has similar provisions on related issues. For example, Article 17, Paragraph 2, of South Korea's "Electronic Transaction Consumer Protection Act" (2002) stipulates that if the goods are damaged or damaged due to consumer negligence, the right of withdrawal shall be eliminated. ;Except for consumers opening packaging and envelopes to inspect the goods. Article 3 of the "Regulations" clarifies that consumers unpack and inspect goods due to the necessity of inspecting goods without affecting the integrity of the goods. E-commerce operators claim that Article 25 of the "Consumer Rights and Interests Protection Law" does not apply on the grounds that the goods have been unpacked. The people's court will not support the no-reason return system stipulated in Article 1, unless otherwise provided by law.What

values ​​​​note is that considering that the administrative regulations of , , etc. have made clearer provisions on the judgment criteria for using goods beyond the need for inspection and causing the goods to be defective, we have stipulated a proviso. Here, "the law provides otherwise." The "law" in "exceptions" should be understood in a broad sense, including laws, administrative regulations, departmental rules, etc.

5 Regarding the transfer of online business accounts and stores

In reality, operators often register online business accounts and open online stores, and then transfer the online business accounts and stores to other operators without changing the business entity information. Consumers in this online store After a dispute arises during a transaction, the issue of public blaming between the business entity and the actual operator must be resolved.

Article 15 of the " E-Commerce Law of the People's Republic of China " (hereinafter referred to as " E-Commerce Law ") stipulates that e-commerce operators shall continue to disclose business license information and administrative matters related to their business operations in a prominent position on their homepage. Licensing information, information that does not require market entity registration in accordance with Article 10 of this Law, or link identifiers of the above information. It also stipulates that if the above information changes, e-commerce operators should promptly update the public information.

We believe that the subject information of network operators should be disclosed in accordance with the law, and consumers’ trust in the disclosed transaction subject information should be protected by law. Regardless of whether the actual operator of the account backend is the disclosure subject, consumers have the right to claim that the disclosure business entity Take responsibility. At the same time, it is the business activities of the actual operators that cause harm to consumers. The actual operators also have the obligation to update public information in a timely manner. From the perspective of protecting consumers, the actual operators should also bear responsibility for their own business actions. . Article 6 of the "Regulations" clarifies that if an operator on the platform transfers online accounts and stores to other operators, but fails to publicize changes in relevant business entity information in accordance with the law, and the actual business activities of the operator cause harm to consumers, consumers have the right to It is advocated that registered operators and actual operators bear liability for compensation and protect the legitimate rights and interests of consumers to the maximum extent.

In judicial practice, it should be noted that neither the law nor the judicial interpretation clearly stipulates who will bear the responsibility if the business behavior causes damage to consumers if the online account and store are lent to others. According to relevant laws and administrative regulations, online transaction operators that have registered as market entities should truthfully disclose relevant information. If relevant information changes, e-commerce operators should update the disclosed information in a timely manner. Operators on the platform lend their online accounts and stores to others to operate, but fail to disclose relevant subject information in a timely manner in accordance with the law, which infringes on consumers' right to know and their right to make consumption choices based on full knowledge. Our initial tendency is to believe that from the perspective of protecting consumers, both registered operators and actual operators should bear responsibility in principle. Of course, the situation in practice is more complicated and should still be determined based on the specific circumstances.

In addition, in practice, there are cases where the operators within the platform hand over the management of their stores to others. In this case, the operating benefits are still enjoyed by the operators within the platform, and the consumer transaction object is the operator within the platform who helps manage the store. The people in the store are actually similar to the staff of the operators on the platform. The person who bears the responsibility of the seller should usually be the operator on the platform.

6 Regarding the issue of off-platform payment

In practice, there are situations where the customer service and other staff of operators within the platform guide consumers to pay through methods other than the payment methods provided by the trading platform, such as paying through the personal WeChat account of the shopping guide. When disputes arise between the two parties regarding the quality of goods, the operators on the platform claim that they are not responsible on the grounds that they have not been paid through the trading platform. We believe that when an operator on the platform sells goods or provides services, the behavior of the operator’s customer service staff and other staff in guiding payments is a professional act. The consumer transaction object is still the operator on the platform, and the operator on the platform should be responsible for the sales. the responsibility of the person or service provider.Article 5 of the "Regulations" clarifies that when an operator on the platform sells goods or provides services, its staff guides consumers to pay through methods other than the payment methods provided by the trading platform. Consumers claim that the operators on the platform bear the responsibility of the seller of the goods. Or the service provider is responsible, and the people's court will not support the defense of the operator on the platform on the grounds that payment has not been made through the trading platform. What should be noted in the application of

is that if the consumer knows that the transaction object is not a merchant on the platform, for example, the shopping guide clearly informs the consumer that the goods it provides are not provided by merchants on the platform, then the consumer knows that the transaction object is not on the platform. The merchant is someone else. This situation is similar to the so-called " flying single " situation in practice. It is different from the situation where the consumer's transaction object is a merchant on the platform as stipulated in Article 5. The responsible subject and liability should be based on the circumstances of the case. Be recognized.

7 Regarding the issue of liability for second-hand goods

The idle item trading model is a typical model in the network economy. With the advent of the Internet+ era, idle item trading platforms have also emerged. The emergence of idle item trading platforms is conducive to the revitalization and reuse of idle items, avoiding waste and saving resources. However, because the relevant legal regulations are not clear, there are different understandings of how to determine liability in judicial practice. Article 3 of the "Consumer Rights and Interests Protection Law" stipulates that operators who provide consumers with the goods they produce or sell or provide services must comply with this law; if this law does not provide for it, they must comply with other relevant laws and regulations. Whether the two parties to the transaction are operators and consumers is the basis for the application of the Consumer Rights Protection Law. Operators should be engaged in the production, sale of goods or provision of services on a continuous basis. Those who sell goods or provide services occasionally or sporadically should not be identified as operators. For example, someone occasionally sells his second-hand bicycles online, and a housewife occasionally sells his own second-hand bicycles online. Those who sell their own items online should not be regarded as operators. But in reality, some people conduct business activities in the name of trading idle items on second-hand trading platforms, in order to avoid supervision and relevant legal regulations. We believe that the seller uses this platform as a platform for commodity business activities and conducts continuous, multiple and repeated sales of the same type of products, which in essence constitutes business behavior and should be adjusted according to the Consumer Rights Protection Law. , to effectively protect the legitimate rights and interests of consumers. Article 7 of the "Regulations" clarifies that if consumers are harmed when purchasing goods on a second-hand goods online trading platform, the people's court can consider the nature, source, quantity, price, frequency, whether there are other sales channels, income, etc. of the goods sold by the seller, and can If the seller is determined to be engaged in commercial business activities and the consumer claims that the seller assumes operator responsibility in accordance with the Consumer Rights Protection Law, the People's Court shall support it.

8 Regarding the problem of damage caused by prizes and gifts

With the rapid development of online shopping, competition among e-commerce operators has become increasingly fierce. Promotional methods such as discounts, prizes, gifts, rebates, points, and redemptions are becoming more and more normalized. These promotional activities activate the market and stimulate consumption. However, there have also been problems such as inconsistent offline service and online promotion commitments, and damage to consumers caused by prizes and giveaways. Although consumers do not formally pay consideration for prizes and gifts provided in promotional activities, operators have actually allocated the cost of prizes and gifts into operating costs and passed them on to consumers. In addition, in practice, consumers can sometimes use points or lower prices to exchange for goods, which is also a promotional tool for merchants. Although the price paid by consumers is lower, they are usually exchanged for other goods, and operators have included the difference in costs. If prizes, gifts, or goods for exchange cause damage to consumers, e-commerce operators shall also bear liability for compensation, and shall not claim exemption on the grounds that the prizes, gifts, or goods are provided for free or that the goods are goods for exchange.

also holds the view that considering that consumers obtain it for free in form, certain restrictions should be imposed.Therefore, the draft for comments has also stated that “the prizes and gifts provided by e-commerce operators in promotional activities have caused damage to consumers due to quality and safety problems. Consumers claim that e-commerce operators should bear compensation liability, and e-commerce operators should The People’s Court will not support claims for exemption on the grounds that prizes and gifts are provided free of charge.” After soliciting opinions, the legislature believes that although promotional prizes and gifts are obtained free of charge for consumers, they are not related to consumers’ consumption behavior. Closely related, if damage is caused to consumers, they should be compensated in accordance with the law. Therefore, Article 8 of the "Regulations" clarifies that if the prizes, gifts provided by e-commerce operators in promotional activities or the goods exchanged by consumers cause damage to consumers, and the consumers claim that the e-commerce operators shall bear the liability for compensation, the e-commerce operators shall The people's court will not support claims for exemption on the grounds that prizes and gifts are provided free of charge or the goods are exchanged for purchase.

9 Regarding the issue of civil liability of webcast room operators

In recent years, the webcast e-commerce industry has developed rapidly. How to guide the healthy development of new business formats and protect the legitimate rights and interests of consumers is a new topic facing judicial practice. As a new digital economic model, online live streaming e-commerce has developed rapidly in recent years. According to relevant statistics, as of December 2021, the number of online live broadcast users in my country reached 703 million, accounting for 68.2% of the total Internet users. Among them, the number of e-commerce live broadcast users is 464 million, accounting for 44.9% of the total Internet users. During the research process, we paid full attention to the issue of online live broadcasting, and the judicial interpretation has made relatively detailed provisions on this issue. It should be noted that the online live broadcast marketing regulated by the "Regulations" refers to commercial live broadcast marketing, and public welfare live broadcast marketing does not fall within the scope of the "Regulations".

First, Article 11 of the "Regulations" stipulates the situation where operators on the platform open online live broadcast rooms to sell goods. Operators sell goods through online live broadcasts in their own live broadcast rooms. In practice, this is usually called brand self-broadcasting. In this case, only the way the operator displays and sells goods has changed, and the liability is not essentially different from that of ordinary operators. The operators within the platform directly bear the responsibility of the seller, and there is no dispute. The operator's staff displays and introduces the products in the live broadcast, which is equivalent to the merchant's shopping guide introducing its own products. Its promotion behavior in the live broadcast is an occupational behavior. It causes harm to consumers due to false propaganda, etc., and consumers claim that within the platform If an operator assumes liability for compensation, the People's Court shall support it. Article 11 of the Regulations makes this clear.

Secondly, in addition to brand self-broadcasting, it is more common in practice for entities other than merchants to open live broadcast rooms to specialize in live broadcast marketing business. In this case, the operator of the live broadcast room may be a live broadcast marketing service organization (MCN organization), a natural person anchor, other organizations, etc. According to our research, in practice, this kind of live broadcast marketing is divided into two situations: self-broadcasting and agency broadcasting. In specific operations, in the case of self-broadcasting and proxy broadcasting, consumers will jump to the product details page after clicking on the product link. In the case of self-broadcasting, they usually jump to the store on the platform opened by the live broadcast room operator to complete the transaction; In the case of agent broadcasting, you jump to other people's stores to complete the transaction. In the case of self-broadcasting, since the operator of the live broadcast room is the same as the operator of the store, there is no dispute over liability, that is, the operator of the live broadcast room bears the responsibility of the seller. In the case of proxy broadcasting, there is greater controversy over liability. There are different views on what responsibilities live broadcast room operators should bear.

One view is that live broadcast room operators should bear the responsibility of sellers. This view holds that in practice, when consumers place orders through live broadcast rooms, they usually think that the transaction object is the live broadcast room operator, and it is difficult for consumers to identify the actual seller; consumers usually go there based on their goodwill and trust in the live broadcast room and the anchor. When purchasing products recommended by a live broadcast room, it is usually considered that the transaction object is the live broadcast room operator; the live broadcast room operator usually shares, extracts commissions, and collects fees from the live broadcast room. It should be determined that the live broadcast room and the operator constitute a joint operation due to its popularity, influence, etc. , the operator of the live broadcast room should bear the responsibility of the seller.

Another view is that in the case of proxy broadcasting, the live broadcast room operator only provides product promotion services and cannot be equated with product sellers, and should fall within the scope of the " Advertising Law of the People's Republic of China " adjustment. When commodity sellers establish a commodity buying and selling relationship with consumers, they shall bear obligations such as incoming inspection and acceptance and maintaining commodity quality for the commodities delivered to consumers, and shall also bear responsibilities for repairs, replacements, returns, damage compensation, etc. In the case of proxy broadcasting, product payment, delivery, returns and exchanges all occur between consumers and sellers. The live broadcast room operator only provides promotional services and does not connect product producers and upstream sellers, nor is it responsible for purchasing and shipping goods. If the live broadcast room operator is asked to bear the responsibility of the seller across the board, the live broadcast room operator will avoid liability in the future. , either it is necessary to inspect the purchase of each batch of goods and essentially become a seller, or it does not provide a purchase link and only promotes it, which may lead to the gradual disappearance of the agent broadcasting model, leaving only self-sowing or "grass planting" The recommendation model will have a relatively large impact on the development of new e-commerce formats.

Based on the above disputes, the "Regulations" draft for comments lists two options. After soliciting opinions from all aspects of society including the market regulatory authorities, and after repeated demonstrations, the current plan was adopted. In view of the fact that the operation of online live streaming is not standardized in practice, causing consumers to be unclear about the actual sales entity, Article 12, paragraph 1, of the "Regulations" stipulates that the operator of the live broadcast room cannot prove that it has done so in a way that is sufficient for consumers to identify. If the consumer claims that the live broadcast room operator bears the responsibility of the seller of the goods if it indicates that it is not the seller and the actual seller, the People's Court shall support it. Paragraph 1 of Article 20 of the " Online Transaction Supervision and Administration Measures " (announced by the State Administration for Market Regulation Order No. 37) stipulates that online trading operators who carry out online trading activities through online social networking, online live broadcasting and other online services shall be Display the goods or services and their actual operating entities, after-sales services and other information in a conspicuous manner, or the link identification of the above information. If the operator of the live broadcast room is the actual seller, he shall bear the responsibility of the seller, and there is no dispute. The operator of the live broadcast room is not the actual seller, but promotes the actual seller, but fails to fulfill the legal labeling obligations. Consumers have reason to believe that the object of their transaction is the online live broadcast room, and the operator of the live broadcast room should bear the responsibility of the seller of the product. . If

has fulfilled its stated obligations to the live broadcast room operator, it does not assume no liability as a seller. There are many possibilities in determining the legal consequences: (1) The operator of the live broadcast room may still bear the liability of the seller. For example, although it is marked that it is not the seller, it is a false indication to avoid liability; although it is marked that it is not the seller, the live broadcast room operator is not the seller. The operator has signed a distribution agreement or cooperative operation agreement with the operator, or has a relatively close cooperative relationship with the operator, and can be determined to be a seller or joint operator based on the facts; during the live broadcast process, the live broadcast room promises to bear the responsibility of the seller responsibilities, etc. (2) The operator of the live broadcast room shall bear the responsibility for advertising, and if it constitutes a commercial advertisement, the advertising operator and publisher shall bear the responsibility for publishing false advertisements. (3) It may also constitute other legal relationships such as entrustment. Paragraph 2 of Article 12 of the "Regulations" stipulates that if the live broadcast room operator can prove that it has fulfilled its obligations listed in the preceding paragraph, the people's court shall comprehensively consider the appearance of the transaction, the agreement between the live broadcast room operator and the operator, and the cooperation with the operator. Factors such as mode, transaction process, and consumer cognition are identified.

live broadcasting continues to develop, and legal relationships and liability forms may become more abundant. The current plan selected in the "Regulations" aims to guide the healthy and standardized development of the new business while maintaining consumers' right to know and their right to choose. One size fits all, and more flexible regulations are adopted to leave room for future development and judicial discretion.

10 Regarding the civil liability issues of the online live broadcast marketing platform

The online live broadcast marketing platform plays an important role in the entire live broadcast marketing market. In practice, it sometimes happens that consumers find it difficult to seek compensation because they cannot find the operator of the live broadcast room.According to the provisions of Article 9, Paragraph 2 of the E-Commerce Law, the e-commerce platform operators referred to in this Law refer to those who provide online business premises, transaction matching, information release and other services to two or more parties in e-commerce. A legal person or unincorporated organization in which two or more parties to a transaction independently carry out trading activities. Online live broadcast marketing platforms also provide online business premises, transaction matching, information release and other services for two or more parties to a transaction, and shall bear the responsibilities of e-commerce platform operators under the E-Commerce Law. Article 44 of the "Consumer Rights and Interests Protection Law" stipulates that if consumers purchase goods or receive services through online trading platforms and their legitimate rights and interests are harmed, they may demand compensation from the seller or service provider. If the online trading platform provider cannot provide the real name, address and valid contact information of the seller or service provider, consumers may also request compensation from the online trading platform provider. According to Article 8 of the "Online Live Broadcast Marketing Management Measures", live broadcast marketing platforms have the obligation to authenticate real identity information such as live broadcast room operators and live broadcast marketers based on identity document information, unified social credit codes, etc. In order to provide consumers with more adequate protection, Article 14 of the "Regulations" stipulates that the sale of goods in online live broadcast rooms harms the legitimate rights and interests of consumers, and online live broadcast marketing platform operators cannot provide the real name, title, address and information of the live broadcast room operators. If consumers have valid contact information and request compensation from the online live broadcast marketing platform operator in accordance with Article 44 of the Consumer Rights Protection Law, the People's Court shall support it. After the online live broadcast marketing platform operator assumes responsibility, it has the right to seek compensation from the live broadcast room operator. The judicial interpretation of

paid special attention to the sale of food through online live broadcasts. In practice, it is common for online live broadcast rooms to sell and promote food, including pre-packaged food and bulk food, as well as food made in family workshops. According to the provisions of the "Food Safety Law of the People's Republic of China" (hereinafter referred to as the "Food Safety Law"), if online food operators should obtain a license according to law, the platform provider should review their license. If the live broadcast marketing platform operator cannot properly control the qualifications of food operators, the risk of consumers facing food safety hazards will be greatly increased. Article 15 of the "Regulations" clarifies that the operators of online live broadcast marketing platforms have not fulfilled their statutory review obligations for the food business qualifications of live broadcast rooms that are required to obtain food business licenses according to law, which has harmed the legitimate rights and interests of consumers. According to the "Food Business License", consumers Article 131 of the Security Law and other provisions require that the online live broadcast marketing platform operator and the live broadcast room operator bear joint and several liability, the People's Court should support this.

It should be noted that according to Article 35, paragraph 1, of the Food Safety Law revised on April 29, 2021, the sale of edible agricultural products and the sale of prepackaged food only does not require a license. Those who only sell pre-packaged food must report to the food safety supervision and administration department of the local people's government at or above the county level for registration.

In addition, according to Article 38, paragraph 1, of the E-Commerce Law, e-commerce platform operators know or should know that the goods sold or services provided by operators on the platform do not meet the requirements for protecting personal and property safety, or there are other Anyone who infringes upon the legitimate rights and interests of consumers and fails to take necessary measures shall bear joint and several liability with the operators on the platform in accordance with the law. As a platform operator, online live broadcast marketing platform operators should also perform corresponding responsibilities in accordance with the law. Article 16 of the Regulations makes this clear.

11 Regarding the issue of civil liability for takeout meals

In recent years, the convenience, efficiency and low cost of online takeout ordering have won the favor of consumers. As of December 2021, the number of online takeout users in my country has reached 544 million. However, due to the virtual, concealed, and cross-regional characteristics of these online food transactions, consumers are also faced with food safety risks during the transaction process. Some online catering service providers do not have any catering hygiene qualifications or even business licenses, but they use the audit loopholes of the takeout platform to operate illegally.

Articles 62 and 131 of the "Food Safety Law" stipulate that third-party online food trading platforms are responsible for real-name registration of online food operators, reviewing licenses, reporting on illegal activities, and stopping providing online trading platform services. Article 131 of the Food Safety Law stipulates that any violation of the above obligations that damages the legitimate rights and interests of consumers shall bear joint and several liability with the food business operator. In judicial practice, many people are not clear about whether and how to apply the Food Safety Law in catering service dispute cases. According to Article 2 of the Food Safety Law, catering services are food operations and should also comply with the provisions of the Food Safety Law. Article 18 of the "Regulations" clarifies that online catering service platform operators violate the provisions of Articles 62 and 131 of the "Food Safety Law" by failing to conduct real-name registration and review of licenses for online catering service providers, or failing to report or stop The obligation to provide online trading platform services has harmed the legitimate rights and interests of consumers. If consumers claim that the operator of an online catering service platform and the online catering service provider bear joint and several liability, the people's court should support it. This regulation aims to consolidate the responsibilities of takeout catering platforms, allowing them to ensure food safety for consumers and ensure "safety on the tip of the tongue" for the people.

In addition, the "Regulations" clarify the responsible parties when online catering service providers entrust others to process and prepare food. In order to better protect the food safety of online catering, Article 18 of the "Measures for the Supervision and Administration of Food Safety in Online Catering Services" stipulates that online catering service providers shall process food in their own processing operation areas and shall not entrust orders to other food operators for processing. Make. In practice, there are still cases where operators operate in violation of regulations and entrust others to process orders. After disputes arise, online catering service providers defend themselves on the grounds that they are processed by others. We believe that it is the online catering service provider that establishes a catering service contract relationship with consumers, and the online catering service provider has legal and contractual obligations to ensure food quality and safety. Moreover, online catering service providers entrust orders to other food operators for processing and production, which violates administrative regulations and is liable. Whether from the perspective of contract or tort, consumers have the right to claim that online catering service providers bear operator liability.

*This article was published in the 2022 Issue 3 of "Chinese Applied Law". Due to space limitations, notes, etc. have been deleted. For details, please refer to the original text of the journal.

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Editor: Pan Yuanyuan

Typesetting: Meng Xiangyu

Reviewer: Liu Chang