E-commerce law second trial: online store “tax dividend age” or will end
The regulatory process of the e-commerce sector is further promoted. After the first trial of the standing committee of the National People’s Congress in December 2016, the electronic commerce law (draft) (hereinafter referred to as “second draft”) was submitted to the standing committee of the National People’s Congress for the second time.
This important legislation in the field of Internet finally enter a second trial, compared with a review of the draft, the second review operators, especially to the electronic commerce platform operator’s obligation and responsibility to make supplement and perfect, such as the protection of the rights and interests of consumers, are to strengthen the protection of intellectual property rights, etc.
Xue Jun think, vice President of the law school of Peking University, and the second review complement the details of a review, puts forward relative to the platform responsibility higher but reasonable request, but for the regulatory definition of the subject is not clear still, some details still need to improve. Comprehensive platform responsibility reasonably, to ask for matching with the characteristics of platform business, help to protect the healthy development of the e-commerce industry, protect the legal rights to the market main body and attain the goal of legislation.
“Advertising” should be marked in the bid list.
Liu ying, deputy dean of the school of law at jinan university, said the new provisions reflected stronger protections for consumers.
These protections run through the whole process of the user’s behavior on the e-commerce platform – from choosing a purchase order to shipping the goods to shipping to the account.
Compared with the draft, the second draft added that e-commerce operators should not infringe upon consumers’ right to know by false publicity, fictitious transactions, and fabricating user evaluations. E-commerce operators shall deliver goods or services to consumers in accordance with their commitments or in the manner agreed with consumers, and bear the risks and responsibilities in the transportation of commodities.
Especially in the aspect of “search results”, the second review new regulations, platform operators shall, according to the price of a commodity or service, sales, credit and so on a variety of ways to display the search results to consumers. For the goods or services that are ranked, the advertisements shall be marked prominently; There is no marked “advertisement”, which is punished according to the advertising law.
Xue said the new terms were significant. “Many users in e-commerce aggregation platform search goods, goods position has a great influence for the purchase decision, if the bidding service platform, it should be clear to consumers have advertising properties of such commodities, rather than based on sales, such as price or store credit natural search results. When the consumer sees the prompt, the judgment can be more accurate and comprehensive.”
Applied to the law, Xue Jun believes that after the state administration for industry and commerce issued the “interim measures for the Internet advertising management” in the specified paid search rankings with advertising attributes, the e-commerce law rates higher, a clear flow nature of the advertising promotion, bidding service, can be quoted qualitative, using the “advertisement law” regulation related specification.
The platform modification agreement shall be publicly consulted
Reviewing two new rules, “e-commerce platform operator modify platform service agreement and trading rules, ought to be in the home page prominently for public opinion, take reasonable measures to ensure that relevant parties can fully express their views in time, modify the content should be at least seven days before the implementation of announces. And make changes in advance.
Second review also stipulates, platform, an operator shall not use the service agreement and trading rules, within the platform operator’s transaction, the transaction price of unreasonable unreasonable restrictions or additional terms, or to the platform operator is not reasonable to charge.
According to xue jun, some Internet e-commerce platforms have obvious advantages in negotiation and negotiation over legal subjects such as operators in the platform. In order to protect the legitimate interests of related legal subject, maintain the fair order of the market trade, modify the trading rules, subject to reasonable program, through such means as public comment and ensure that all parties can express their opinions.
In response, the Chinese university of political science and law, vice President of the law school of civil and commercial economic.chem eng sci expressed a similar view, he believes, platform rules affect the rights and interests of operators, public comment rules embody the value of fair and reasonable request. In order to ensure fair trading, the regulation and review provisions of the rules should be added to the regulation. Platform trading rules, should also belong to the object of market regulation, so it is fair to shall review the terms of trading rules, whether there is any improper behavior, in order to prevent by platform on top of unfair terms.
Online store “tax avoidance bonus era” or will end
The second draft stipulates that the e-commerce platform shall examine and register the identity and administrative license of the operator who applies to the platform; An e-commerce platform operator shall submit the identity information and operation information of the operator within the platform to the administrative department for industry and commerce and the taxation department.
This means that the much-maligned platform of “tax avoidance dividends” may end.
According to zhao xudong, the identity information of the operator is helpful for the supervision and regulation of e-commerce operators and the taxation management.
Combining electricity legal practice, dacheng law firm lawyer Wei Shi Lin believes that e-commerce transactions related to mobile phone number, which ran a variety of information, such as platform has the ability to optimize the registration rules and judging information authenticity. After the result of the infringement of the copyright infringement, the infringer information is missing and cannot be found, which raises the cost of consumer protection and reduces the tort threshold accordingly. The identity information of the operator on the platform and promotion of the identity of the platform for the registration of information are beneficial to the dispute resolution.
The exemption scope of natural person’s online store is expanded
In the first instance of the draft, “whether or not a personal online shop needs business registration” is a hot topic.
A review has stipulated that the e-commerce operator should handle business registration in accordance with the law. However, in accordance with the law, it is not necessary to obtain a license to provide labor services, domestic handicraft industry, produce self-production of agricultural products, and not to be registered in accordance with the law. Specific measures shall be formulated by the state council.
However, according to thepaper.cn, there were two opinions when the draft was considered in the group. One view is that the above exemption from business registration is too narrow for e-commerce development; Another opinion, draft and promulgated by the state council in August of unlicensed unlicensed and regulations consistent overall, at present, the industrial and commercial registration, tax registration, has been consolidated, implement a yard, industrial and commercial registration is the basis of tax collection and administration, industrial and commercial registration shall be online.
The second draft shall adjust the terms and conditions of the business registration scope to: the e-commerce operator shall handle the business registration in accordance with the law. However, sales produced agricultural and sideline products, household products, personal use their skills in accordance with the law, do not need to obtain permission for the convenience of service activities, and in accordance with the laws and administrative regulations, do not need to undertake industrial and commercial registration.
According to xue jun, the adjustment of the exemption project statement in the second draft is more accurate in terms of judging the behavior attribute. If the operating attribute is not exempt, the registration obligation and the consequent tax obligations shall be generated. The newly added “individuals use their own skills to engage in civilian labor activities that do not need to be licensed in accordance with the law”, and expanded the scope of exemption.
According to weishibari, because of such exemptions, in practice, some enterprises are registered under the name of personal exemption of goods, which will bring difficulties to the supervision. Therefore, more detailed criteria should be set out in the relevant regulations, and the illegal consequences of false registration shall be provided.
The platform protects intellectual property rights “knowingly” and “should be known”
Compared with a copy, the second copy further strengthens the responsibility of the platform operator’s intellectual property protection.
The article stipulates that the main subject of e-commerce shall protect intellectual property according to law and establish rules of intellectual property protection. If the e-business operator of e-commerce infringes on intellectual property rights, it should take necessary measures such as deleting, blocking, disconnecting, terminating the transaction and service.
Going over manuscripts Xue Jun believes that a provision of the electric business platform operators do not take timely measures to stop the infringing the legal consequences, to the compulsory requirement of the platform is too low, even the identified the tort liability act standard. He believes that the new “no necessary measures to take necessary measures, and the joint liability of the infringer” is a major step forward in the legislation.
Second review another breakthrough is, the use of “should know” replace a review of “knowledge”, “tort liability” clause is revised as follows: e-commerce platform operator knows or should know that within the platform operator infringement of intellectual property rights, should be taken to delete, block, broken links, termination of trading and the necessary measures such as the service; Where the measures are not taken, the infringer shall be jointly and severally liable.
In December, when a review was submitted for consideration, some members of the NPC standing committee proposed that the “tort liability” clause should be less obligatory.
According to the Beijing news reported, vice chairman of the standing committee of the NPC standing committee Wan Exiang with the terms and conditions, for example, pointed out that the provisions on the protection of third-party e-commerce platform and e-commerce operators, without stepping up efforts to protect consumers. “In general, there is a very important concept in civil law other than ‘sensible’ that can increase the responsibility of e-commerce or sellers, which is’ should know ‘.” , he said, such as commodities have been labelled “high copy”, and with very low price, much lower than normal brand, to entice consumers to click, electricity crimped said don’t know true and false, it is belong to “ought to know.
Xue said that the e-commerce platform “should be known” or “knowingly” infringes the infringement, which means that the platform will assume more comprehensive responsibility.
Only take “notification, delete” haven principle, make some obvious infringement can also be electric business platform is easy to dodge, Wei Shi Lin believes that this shows that happened to the legislation principles from the “safe haven” principle to the change of the “red flag” principle, since the fact that if the infringement is obvious, the platform operator cannot pretend to be invisible, or don’t know the reason why the infringement to evade responsibility, this change is intended to crack down on Internet infringement such as counterfeits.