Author: Shao Haipeng
Some micro-merchants falsely propaganda, promises not to honour, after consumer disputes, directly delete friends or change accounts to evade legal responsibility, consumer rights difficult; some e-commerce operators brush sales volume, brush praise, delete bad comments, seriously misleading consumers; some platforms appear "big data kill familiar" situation, triggering the public Dissatisfaction......
The Electronic Commerce Law, which will be formally implemented on January 1, 2019, will regulate these disorders in the field of electronic commerce and effectively protect the rights and interests of consumers. On September 25, the Chinese Consumer Association interpreted the newly promulgated Electronic Commerce Law in light of the relevant complaints and some cases.
From the perspective of consumer protection, the newly promulgated e-commerce law has many bright spots.
In recent years, new forms of e-commerce have emerged constantly, and the situation of selling goods and providing services through micro-mail and live network broadcasting is increasing day by day, which also brings many new problems of consumer rights protection.
For example, due to the lack of credit guarantee system, low entry threshold, no physical stores, no business license, consumer disputes, some micro-businessmen directly delete friends or change accounts to evade legal liability, consumer rights difficult. In addition, false propaganda and unfulfilled promises are also more prominent. Some micro dealers also take the opportunity to carry out illegal pyramid schemes.
In Article 9 of the Electronic Commerce Law, these new forms and related subjects are included through "other network services". It is also an electronic commerce operator who explicitly uses Weixin Friends Circle and live network broadcasting to engage in business activities of goods and services.
This means that the sale of goods and services through WeChat, webcast will be included in the management. China Consumer Association interpretation said that this is conducive to strengthening the supervision of relevant areas, is conducive to better resolve such consumer disputes.
In order to protect consumers'right to know and to choose, the newly promulgated Electronic Commerce Law also puts forward the requirement of "prohibiting fictitious transactions, fabricating evaluation, and the platform should not delete evaluation" and clearly stipulates the electronic commerce economy. The general obligation of information disclosure by the battalion.
For example, Article 17 stipulates that "e-commerce operators shall disclose commodity or service information in a comprehensive, authentic, accurate and timely manner", "e-commerce operators shall not deceive or mislead consumers by means of false or misleading commercial propaganda such as fictitious transactions, fabricated user evaluations, etc."
For example, Article 39 stipulates that "e-commerce platform operators shall establish and improve credit evaluation system, publicize credit evaluation rules" and "consumers shall not delete the evaluation of goods sold or services provided on their platform."
Article 81 stipulates that the operators of electronic commerce platforms who violate the provisions of this Law, such as "failing to provide consumers with the means to evaluate the goods or services sold on the platforms, or deleting the evaluation of consumers without authorization", shall be ordered by the market supervision and administration department to make corrections within a specified period of time and may be punished by two penalties. A fine of not less than 100,000 yuan but not more than 100,000 yuan shall be imposed; if the circumstances are serious, a fine of not less than 100,000 yuan but not more than 500,000 yuan shall be imposed."
Big data to kill how to do?
Some consumers reflected that online booking hotels and booking vehicles encountered platform and electricity suppliers. A consumer surnamed Liao said he often booked a room at a particular hotel through a travel service website. The annual price was between 380 and 400 yuan. Occasionally, he learned through the front desk, the hotel room off-season price is about 300 yuan, with a friend's account inquiry found that it is 300 yuan, but with their own account to check, or 380 yuan.
At present, e-commerce operators have accumulated a large number of users'personal information, transaction records, and so on. They use large data to portray consumers, purposefully provide search results, and carry out accurate marketing. Some platforms even appear to be "big data kill", causing public dissatisfaction.
Therefore, the E-commerce Law clearly stipulates that, firstly, while providing search results for goods and services according to consumers'personal characteristics, it should also provide non-targeted options to protect consumers' right to know and to choose by providing optional information. Two, the operators of electronic commerce should also comply with the advertising law. Third, if a person clearly violates the provisions of this Article, the market supervision and administration department shall order him to make corrections within a time limit, confiscate his illegal income and may concurrently impose a fine.
No unreasonable conditions are allowed for the deposit.
Since 2017, sharing bicycle enterprises, such as Macau, Wukong, Cool Ride, Xiaoming and Xiaolan, have ceased operation one after another due to financing difficulties and capital chain breakage. Because these sharing bike enterprises collect deposits from consumers, most of them embezzle deposits in violation of regulations, resulting in consumer deposits difficult to return. As of December 21, 2017, the CPPCC had received 2064 letters from consumers of bicycle riding nationwide asking for refund of deposit, advance payment and transfer of criminal clues, and submitted a criminal report to the relevant public security organs.
In order to promote the solution of consumers'practical difficulties, the CPPCC also publicly put forward on December 20, 2017 "legislative proposals on the collection of deposits and prepaid fees for e-commerce operators such as sharing bicycles" and called on the enactment of the "e-commerce law" at that time to limit qualifications, contract regulation, performance guarantee, information disclosure, etc. Provisions should be made on fee refund, cooling-off period, delisting requirements and legal liability to strengthen the protection of consumers.
The deposit is the pledge security of leasing the specific subject matter, which belongs to the real right of security and mainly guarantees the performance of the contract. The ownership of the deposit belongs to the consumer, and the operator shall not misappropriate it under any circumstances.
The newly promulgated Electronic Commerce Law clearly defines the obligation of deposit refund of electronic commerce operators, and protects the legitimate rights and interests of consumers.
For example, first, it is clearly stipulated that e-commerce operators should express the way and procedure of deposit refund, not set up obstacles to refund; second, it is stipulated that consumers apply for refund of deposit, meet the conditions for refund, e-commerce operators should refund in time; third, it is not in accordance with the provisions of express deposit refund way. Procedures, if unreasonable conditions are set for the refund of the deposit, or if the deposit is not returned in time, the competent department concerned shall order it to make corrections within a time limit and may impose administrative penalties. If the circumstances are serious, the maximum penalty may be less than 500,000 yuan.
Joint and several liability of platform operators
There are three typical cases that promote the new "E-commerce Law" to promulgate "platform operators fail to fulfill their obligations and should assume responsibilities according to law", which have also attracted the attention of legislative departments step by step.
In mid-July 2017, Li Mou, a college graduate, was murdered in a pyramid scheme when he searched for a job through an Internet recruitment platform. Lee applied for "Beijing Kelan company" is a fake recruitment of "Li Gui" company. The survey found that most of these false jobs are targeted at college graduates who have just entered the society. They often have shallow social experience, lack of vigilance to recruiters, and can not detect fraud.
According to reports, until the event occurred, the platform still allows recruiters to release the first position on the platform, as long as the information compliance, you can start, if not trigger user reports, not mandatory audit, which also gives MLM staff a chance.
The CPPCC takes this case as one of the typical cases of network consumption to provide legislative reference for the NPC, and suggests that the platform operators themselves should do their duties and responsibilities.
Late in the evening of May 5 this year, Ms. Li, an airline stewardess, was found to have been raped and murdered by a driver after she lost her connection on a windmill platform. The platform had poor management of driver auditing and car consistency, inadequate attention to windmill night operations, and inadequate management of consumer complaints. And other issues, causing widespread concern in the community.
On the 22nd of the same month, the CPPCC held a forum on "Promoting the Safety Consumption of Internet Contracted Vehicles", urging operators of Internet Contracted Vehicles to implement their legal obligations and responsibilities, and appealing to the legislature to further clarify and refine the relevant provisions of platform operators, strengthen the protection of consumers, and prevent platform operators from evading their obligations and responsibilities. Under the joint promotion of all walks of life, the three drafts of the Electronic Commerce Law stipulate that if the platform operators fail to fulfill the obligations of examination and security for the commodities or services related to the life and health of consumers, thereby causing damage to consumers, they shall bear joint and several liabilities with the operators in the platform according to law.
On August 24, Zhao, a 20-year-old woman from Wenzhou, Zhejiang Province, was raped and murdered by her driver Zhong Mou after riding on the same platform. According to reports, when the abnormality was found, the platform lacked convenient and effective emergency rescue methods, and did not timely assist Zhao's relatives and friends, the police to provide driver information, especially one day before the incident, other consumers complained that the driver had committed irregularities, but was not taken seriously by the platform and dealt with.
On the 27th of the same month, the Draft Law on Electronic Commerce (Draft) entered the final stage of deliberation. The fourth draft of the draft will be jointly and severally liable to the operators of the platform in accordance with the law for the goods or services related to the life and health of consumers, and the platform operators for failing to fulfill their auditing and security obligations. The amendment to "assume the corresponding supplementary responsibility" greatly reduces the responsibility of platform operators, which is not conducive to the protection of consumer rights and interests, and once again triggers social heated debate. For this reason, the CPPCC declared that it is proposed to restore the provisions of the draft for the third time on joint and several liability of platform operators in accordance with the law.
The Standing Committee of the National People's Congress attaches great importance to this issue. After repeated weights and balances, the second paragraph of Article 38 of the newly promulgated "Electronic Commerce Law" finally makes it clear that platform operators "shall bear corresponding responsibilities according to law" under such circumstances. According to Yang Heqing, deputy director of the Economic Law Office of the Standing Committee of the National People's Congress, who answered questions about the Electronic Commerce Law, he assumed corresponding responsibilities according to law, including that platform operators failed to fulfill the above obligations and that, in accordance with the Tort Liability Law and other laws, those who constitute joint infringement shall bear joint and several liability.
For the twists and turns of this amendment, the Chinese Consumer Association interpretation said that for goods or services related to consumer life and health, should strengthen the bottom line responsibility of operators to ensure consumer safety rights.
In addition to the above-mentioned civil liability, "e-commerce law" also provides that, if the platform has related violations, but also bear administrative and criminal responsibility according to law. This modification mainly takes into account the complexity of the situation that platform operators fail to fulfill the above obligations, and needs to be determined according to the actual situation in accordance with the law. This requires the relevant judicial organs, regulatory departments to consider all aspects of factors, according to legal provisions, according to the illegal situation, to make specific decisions.
As for the soon-to-be-implemented Electronic Commerce Law, the CPPCC calls on the operators of electronic commerce to earnestly study the provisions of the Electronic Commerce Law, improve their services and management in a timely manner in accordance with the legal requirements, and effectively assume their legal obligations and responsibilities; and hopes that the relevant government departments will strengthen their research and promulgate supporting laws and regulations as soon as possible. Refining relevant laws and regulations, strengthening supervision and law enforcement, and strengthening consumption.
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