The e-commerce law will be implemented: the platform will be penalized for 2 million without due diligence

The e-commerce law will be implemented: the platform will be penalized for 2 million without due diligence

Source: People Author: 2018-09-04 10:04:34
The 5th meeting of the Standing Committee of the 13th National People's Congress voted on August 31 to pass the E-commerce Law, a total of 89 chapters and 89 articles, the establishment and implementation of e-commerce operators, e-commerce contracts, e-commerce dispute resolution, e-commerce promotion, Detailed stipulations such as legal responsibilities will be implemented from January 1, 2019. After many public consultations, after four deliberations, the e-commerce law was finally released.
The promulgation of the e-commerce law is of great significance to standardizing the behavior of various entities in the e-commerce sector, maintaining the market order of the e-commerce industry, and guiding the sustainable and healthy development of the e-commerce industry. What better protection is the legitimate rights and interests of consumers? What kind of regulation and support has the e-commerce industry developed?
The e-commerce platform has not fulfilled the audit obligation, and the maximum penalty is 2 million.
Buying fakes and leaking information is a bad experience for many consumers online shopping.
In order to protect consumer rights and respond to social hotspots, the E-commerce Law stipulates that e-commerce platform operators do not fulfill their auditing obligations on the qualifications of operators in the platform, or Whoever fulfills the obligation of security protection and causes damage to consumers shall bear corresponding responsibilities according to law. If the operators of the e-commerce platform fail to take necessary measures for the operators in the platform to infringe upon the legitimate rights and interests of consumers, if the circumstances are serious, they shall be ordered to suspend business for rectification and impose a fine of not less than RMB 500,000 and not more than RMB 2 million.
The e-commerce law also has clear regulations on the protection of consumer network transactions. For example, in terms of improving the delivery of goods and services, it is stipulated that “the express delivery logistics service provider shall prompt the consignee to inspect the goods when delivering the goods; if it is handed over by others, it shall be approved by the consignee”.
In order to protect the security of personal information, the E-commerce Law clearly stipulates that if e-commerce operators violate the provisions of personal information protection stipulated by laws and administrative regulations, or fail to fulfill the network security guarantee obligations stipulated by laws and administrative regulations, Penalties imposed by laws and administrative regulations such as the Law.
“Responsibility” reflects flexibility, and the platform is responsible for the specific case.
If the consumer's rights are violated, what kind of responsibility should the e-commerce platform bear? In the process of reviewing the draft of the e-commerce law, joint responsibility, supplementary responsibility, and corresponding responsibilities have all become hot topics of discussion and have aroused public concern. What is the difference between these kinds of responsibilities?
Liu Junhai, a professor at the Law School of Renmin University of China, believes that joint liability and supplementary liability are different in the determination of liability and compensation. The joint responsibility has higher requirements on the platform, and can be used as the first order of consumer compensation; the supplementary responsibility is to find the operator first, and if there is insufficient or incapable, then find the platform. The joint responsibility is to extend the provisions of Article 131 of the Food Safety Law. Food is more related to the personal health of consumers and requires the platform to bear higher compensation obligations. The supplementary responsibility is the idea of continuing the safety and security obligations of the 37th Article of the Tort Liability Law for the management of public places such as hotels, shopping malls, banks, stations, entertainment places, etc. The norm is a wider offline place.
During the review process, the draft three review drafts had provisions on joint liability for operators of e-commerce platforms and operators within the platform, which were later adjusted to “additional responsibilities”. Some insiders pointed out that because the definition of e-commerce is relatively broad, it includes not only the traditional e-commerce platform, but also a large number of O2O platforms, new retail enterprises, etc., if unified according to the food safety law, the O2O platform The claim for compensation is indeed too high. Compared with joint responsibility, supplementary responsibility is undoubtedly a better solution.
However, after the appearance of the "Supplemental Responsibility", it has caused considerable controversy in the society. Many experts and scholars pointed out that the revision of the words "from "joint" to "supplement" has profoundly changed the interests of the platform. Greatly reduce the responsibility of the e-commerce platform. Wang Chu, chairman of the Board of Directors of the China Chain Store & Franchise Association, believes that if offline entities sell fake and shoddy goods, they must bear the “joint and several liability”. Therefore, the e-commerce platform should also be treated equally. Xu Xianming, a member of the Standing Committee of the National People's Congress, said that reducing the responsibility of platform operators is tantamount to increasing the responsibility of consumers for self-protection.
After several revisions, the e-commerce law finally finalized this clause as “responsible responsibility”. Chen Jian, director of the Legal and Theoretical Research Department of the China Consumers Association, believes that the corresponding responsibilities can include multiple responsibilities, such as supplementary responsibilities, liability, and joint liability. Now that the law makes this statement, it means that the responsibility of the platform depends on the circumstances. Xue Jun, deputy dean of the Peking University School of Law, said that the final platform accountability statement is conducive to shelving the dispute, reflecting the specificity of the legislation, flexibility and forward-looking unity. In the future handling of consumer disputes, if the special law has provisions, it shall be prescribed; if not, the judicial department shall carry out corresponding identification and accountability according to the specific circumstances of the platform's fault, the nature of the responsibility and the proportion.
Micro-commercials are included in the scope of e-commerce operators, and consumers can protect their rights.
In recent years, micro-business has developed rapidly, but it is also the hardest hit by consumers. According to the "Analysis of Complaints Accepted by the National Consumers Association in the First Half of 2017" released by the China Consumers Association last year, "there are many complaints about online consumption and difficulties in safeguarding rights in micro-business transactions".
The reason for the difficulty in defending rights in micro-business transactions is that “micro-business” is a small store with no physical store, no business license, no credit guarantee, no third-party trading platform, low entry threshold, lack of perfect trading system, disputes, sellers. Directly delete a friend or change an account to evade legal responsibility, consumers can not find a business.
Article 9 of the E-commerce Law stipulates that the term "e-commerce operators" as used in this Law refers to natural persons, legal persons and unincorporated organizations engaged in the business activities of selling goods or providing services through information networks such as the Internet, including e-commerce platform operators and platforms. Internal operators and e-commerce operators who sell goods or provide services through self-built websites and other online services. According to industry insiders, the first two categories are well-known and the most typical form of e-commerce operators. The third category is a new type of operator after the second instance.
“Micro-business as an e-commerce operator is clearly defined in law, and correspondingly it must assume corresponding obligations and responsibilities, which will provide a strong legal basis for consumer rights protection.” Deputy of the Research Society of Consumer Rights Protection Law of China Law Society Secretary-General Chen Yinjiang said that although “micro-business” is not a legal term, it does exist in practice and is one of the new forms of e-commerce in the era of mobile Internet. Its operators should belong to the category of e-commerce operators. WeChat used when communicating directly with buyers is part of other network services.
In daily consumer life, many consumers have complained that during the “Double 11” and other e-commerce concentrated promotion activities, many large e-commerce platforms took inappropriate measures based on commercial competition purposes and proposed “two on the platform”. Choose one" requirement. In this regard, many businesses are also suffering, and it is difficult. This kind of behavior seriously affects the owner's right to self-management, and at the same time damages the consumer's independent choice, undermines the normal market order, and the society is also criticized.
Article 35 of the E-commerce Law stipulates that e-commerce platform operators shall not use service agreements, trading rules and technologies to conduct transactions on the platform, such as transactions, transaction prices and transactions with other operators. Reasonably limit or add unreasonable conditions, or charge unreasonable fees to operators within the platform. Lu Laiming, a professor at the School of Law of Beijing Technology and Business University, believes that it is undoubtedly positive to prohibit the e-commerce platform from implementing the "two-choice one" behavior, especially for the two-tier behavior of large-scale platforms with control advantages and market dominance. At the same time, it is beneficial for consumers to expand their autonomy and enjoy more price concessions.