Keywords: Internet consumer rights protection network operators infringement
Various situations that harm consumers' rights and interests in e-commerce have gradually become obstacles to its development, and also pose a severe challenge to the protection of consumers' rights and interests. Therefore, under the premise of respecting the development law of e-commerce, taking various measures from the legal and related levels to protect the legitimate rights and interests of consumers plays an important role in promoting the healthy development of China's network economy and improving the consumer rights protection system.
First, the definition of the qualifications of consumers and operators in e-commerce.
Consumers and operators are corresponding and opposite. Without operators, there would be no consumers, and vice versa. There are three possible transaction modes between consumers and operators in e-commerce: B2B, B2C and C2C, among which the existence of consumers and operators under B2C mode is indisputable. Whether there are consumers and operators in B2B and C2C models, and how to define the main qualifications of consumers and operators are worth discussing.
E-commerce is just one of the ways of people's life and consumption, and it has not changed the definition of consumers or the protection of consumers by law, so the definition of consumers in the current law is also applicable to the field of e-commerce. China's Consumer Protection Law does not explain the definition of consumers, nor does it explain their subjective qualifications. To clearly define the identity of consumers in e-commerce, we must define the subject qualification and concept of consumers. According to the National Bureau of Standards "General Instructions for the Use of Consumer Goods", only "individual members of society" can become consumers. Some scholars believe that if the means of subsistence purchased by a unit are eventually used by individuals, then both the unit and the collective belong to the protection scope of the Consumer Rights Law. The author believes that in this particular case, whether "unit", "collective" or "organization" constitutes the main body of consumers is still debatable:
First of all, the internationally accepted rule is to position consumers as individuals. Judging from the current legal theory and the legislative practice of consumer protection laws in various countries around the world, the subject qualification of consumers is limited to individuals. For example, the Oxford Law Dictionary defines consumers as people who buy, obtain and use various goods and services from business operators; The Consumer Policy Committee of the International Organization for Standardization (ISO) defines consumers as individual members of society who buy or use goods and services for personal purposes. The EU Consumer Remote Contract Directive defines a consumer as any natural person who does not sign a contract for commercial, trade or professional purposes.
Secondly, only natural persons can become the main body of final consumption, and the basic point for units to purchase means of subsistence is still personal consumption. The consumption referred to in the Consumer Protection Law is personal consumption, or direct consumption. When the unit is the buyer of goods and service contracts, it cannot directly consume life and become the final consumer. When a legal person or other organization purchases goods or services for consumption, it should be regulated by the Contract Law, not by the Consumer Protection Law. If the unit insists on claiming rights in accordance with the Consumer Law, in this case, its status is equivalent to the litigation representative in China's civil litigation system.
Finally, from the legislative point of view of consumer rights protection, the legislative purpose is to protect the disadvantaged party in the transaction. As far as the strength of this stock is concerned, it is difficult to regard it as a weak side of the market. Individual consumers are often in a weak position in the transaction process and should be specially protected by the consumer rights protection system. Moreover, compared with operators, they lack trading experience or sufficient trading information and trading ability, which leads to the lack of equal strength with operators in trading and requires the intervention of national legislation; However, legal persons or other organizations have enough group strength to compete with operators when conducting transactions, and even in some cases, they are in a strong position and do not need special protection in law.
Therefore, the author believes that only individuals are qualified to become consumers. Consumers refer to individual members of society who buy or use commodities or receive commercial services for the purpose of daily consumption, and their consumption rights and interests are protected by special state laws. Then the main qualification of consumers in e-commerce is: individuals who buy, use goods or accept commercial services with the help of e-commerce for the purpose of daily consumption. Therefore, the unit buyer under B2B trading mode does not have the main qualification of online consumers, that is, there are no consumers and operators under B2B trading mode.
China's Consumer Protection Law does not explain the concept of operators, nor does it define their subject qualifications. Operators stipulated in the Anti-Unfair Competition Law include legal persons, other organizations and individuals. The Product Quality Law uses the concepts of "producer" and "seller", but does not combine them. In practice, the concept of operator is not clear, and there is no unified identification standard. In China, the management of operators focuses on obtaining business licenses or business activities. In this paper, "operator" is defined as a legal person, other organization and individual who engages in the production, sale and commercial service of commodities for profit and obtains a business license. At the same time, this paper holds that there are legal persons, other organizations and individuals who use e-commerce to achieve profit-making purposes and engage in commodity production, sales and commercial services. Under the C2C trading mode, although the seller is an individual without a business license, the individual seller should be regarded as the operator, so that the corresponding buyer will naturally become a consumer, and the behavior of both parties is regulated by the Consumer Protection Law. The specific reasons are as follows:
1. From the legislative point of view of consumer rights protection, consumers, as scattered and isolated individuals, are in an unfavorable or weak position. And in the transaction process, there are factors such as information asymmetry [2], so the law should protect the legitimate rights and interests of consumers; In e-commerce, due to the virtualization and electronization of the network, the weak position of consumers is more obvious. For example, in C2C transactions, online sellers only disclose commodity information or their own identity information, and consumers cannot identify the authenticity of their information. If the information disclosed by the seller contains false contents, the rights and interests of the buyer will not be guaranteed. Information asymmetry is vividly displayed in C2C trading mode, and buyers are always in a weak position in the whole trading process.
2. Under the 2.C2C trading mode, an enterprise may be registered as an individual, and it is difficult for the buyer to know whether the transaction object is an enterprise or an individual. If the law completely excludes the business sellers registered as individual users from the scope of business operators, then individuals who trade with such sellers will not be regarded as consumers by law and will not receive special protection.
3. In 3.C2C transactions, most individual sellers are engaged in selling goods, which have profit-making purposes subjectively and profit-making behaviors objectively. Due to the characteristics of the network, individual sellers can open "shops" to sell goods only by virtue of their personal ID cards or relevant certificates. Its "store" scale and product types can even be comparable to those of real-life merchants, even larger and more diverse. Its sales methods are diverse, including auction, retail and wholesale. The nature of such individual sellers is the same as that of operators in real life, and the only difference is that they use the convenient resources of the Internet. Treating such individual sellers as operators is more conducive to protecting the rights and interests of online consumers.
Under the C2C trading mode, how to determine individual sellers as operators through specific standards involves the technical problems of making laws. This paper will not discuss them, but it is suggested to consider the following factors: (1) Whether individual sellers take selling goods as a business or not, and whether they have profit-making purposes. (2) Whether the amount or transaction frequency of goods sold by individual sellers reaches a certain standard. (3) Commodity inventory of individual sellers "shops".
Second, the protection of consumer rights in e-commerce problems
Compared with traditional transactions, e-commerce has the characteristics of virtualization of transaction subject, paperless transaction process, electronic means of payment and extensive trading space, which makes the power contrast between operators and consumers more disparity, and the right to know, independent choice, fair trade and security of network consumers is more vulnerable to infringement by network operators. (See table 1)
1, online consumption fraud
Online consumer fraud refers to the behavior that operators use fictitious goods and service information or other improper means to defraud consumers of property for the purpose of illegal possession. It should be emphasized that the operators in this concept include real operators and fraudsters who pretend to be operators. Because, under the network environment, if the seller fails to fully disclose his identity information or fabricate identity information, it is difficult for the buyer to identify or judge the true identity of the seller. In the current situation of imperfect network legal norms, the author believes that as long as consumers regard online sellers as operators, or judge or infer that they are operators according to the information disclosed by sellers, whether they are real operators or fraudsters pretending to be operators, they should legally identify sellers as operators. This not only expands the scope of application of the Consumer Protection Law, but also helps consumers to seek judicial relief after being cheated. This law can also be used to further standardize online transactions and make up for the shortcomings of existing laws in supervising online transactions. At present, the means of online consumer fraud are: low-price trap to obtain payment, empty promise to defraud the deposit, online auction fraud and so on.
In view of online consumption fraud, we can try to establish a preventive system beforehand: (1) establish an operator information management center; (2) Strengthen government supervision; (3) Clarify the review obligation of online trading platform providers from legislation; (4) It can be considered that when it comes to online consumption contracts, the law stipulates that in online transactions, the consumer should be paid in advance, and the ownership of the advance payment will not be transferred before the transaction process is completed.
2. The problem of false advertisements on the Internet.
Internet false advertising refers to the untrue information about products or services released by operators to induce consumers to buy goods or accept services, such as exaggerating product performance and efficacy, false prices, false service promises, etc. Because of its particularity, online advertising has brought certain difficulties to the examination and supervision of relevant departments. Online advertising is an important basis for online consumers to shop, and consumers' shopping decisions are largely based on the judgment of advertising words and images. It is difficult for consumers to judge the authenticity and reliability of advertising information, and it is difficult to guarantee the right to know and fair trade.
The author has the following suggestions on the supervision of online false advertisements: (1) Strengthen the examination and publication of the identity of operators; (2) define the responsibilities of ISP[3] and ICP; (3) Clarify the regulatory authority of the competent department and the legal responsibilities of relevant personnel; (4) Improve relevant laws and regulations. It is necessary to formulate special rules for improper inducement methods such as false advertisements on the Internet, so as to make the publishing behavior of online advertisements have laws to follow and strengthen the management of false advertisements.
3. The performance of the online consumption contract.
Improper performance of online consumption contracts is mainly manifested in the following aspects: (1) delayed performance. The slow delivery of online shopping logistics is one of the problems that consumers often encounter. For some reasons, the delivery date promised by operators to consumers is difficult to cash. (2) Defective performance. After online consumers order goods and send out payment, the type, quantity and quality of the goods actually delivered are often inconsistent with the product introduction. (3) After-sales service cannot be guaranteed. The biggest feature of online trading is to break geographical restrictions. Although the Consumer Protection Law stipulates that operators undertake the obligation of "guarantee repair, replacement and return", it is difficult for consumers to realize their right to enjoy after-sales service because of cross-regional transactions. The return of digital goods has also become a new problem faced by the Consumer Protection Law.
China's Consumer Protection Law does not stipulate the contract performance period of operators, and there is no provision in relevant laws and regulations that is beneficial to consumers' performance period. According to the EU Consumer Protection (Remote Sales) Rules which came into effect on June 3, 200010: "The supplier must perform the contract within 30 days after the consumer places an order with him. No matter what the reason, the supplier fails to perform the contract within the prescribed time limit, and must inform the consumer as soon as possible and return the money involved. The notice and return period is within 30 days after the expiration of the performance period. " The rule also stipulates that "consumers have the right to terminate any remote contract within at least 7 working days without paying liquidated damages and explaining the reasons. In the termination of the contract, the cost borne by the consumer is limited to the direct cost of returning the goods. " In the future legislation, China should consider these two rules and determine the longest performance period and "hesitation period" conditionally. The former can prompt the operator to process information in time and fulfill the contract as soon as possible; The latter can ensure the realization of consumers' "right to return goods" and protect the legitimate interests of operators.
4. The problem of network format contract.
At present, format contracts are widely used in online consumption contracts, and most of the transaction terms or service terms are drawn up by operators in advance, so consumers can only accept or reject them. Consumers often encounter click-distorted contracts in online transactions, that is, online contracts concluded by consumers clicking the "agree" or "accept" button on the operator's website according to the tips of the webpage. Another format contract is browse-warp contract, which means that the operator, as a party to the contract, stipulates in the contract that once the visitor browses the home page of his website, he establishes a contract with the operator.
There are clauses in the operator's format contract to reduce and exempt their own responsibilities, and the high concealment of these clauses makes consumers ignore the unfair and unreasonable contents in the clauses.
In the network environment, it is unrealistic to eliminate the format contract, because "the network has conditions and advantages to naturally apply the format contract" [4]. In this case, the government has the responsibility to formulate some rules to standardize the procedures and contents of network format contracts, so as to protect the legitimate rights and interests of consumers: (1) Operators have the obligation to prompt the rationality of contract conclusion procedures. Network operators often set up convenient links and hide format contracts in other pages, so that consumers can't know the existence of contracts. Operators should prompt consumers of the existence of contract terms with eye-catching signs, and technically set up prompt procedures so that consumers can conclude contracts after reading the standard terms. (2) The operator has the obligation to prompt the rationality of the format clause. In the process of concluding a contract, the operator should remind consumers which agreements, statements and notices on the website belong to the contract terms, and should inform consumers of the key terms in an eye-catching and easy-to-understand form. (3) The operator's obligation to inform about the change of contract contents. After the conclusion of the contract, there is a situation in which the operator changes or modifies the terms of the contract, and the operator shall fulfill the obligation to inform of the change or modification of the terms.
5. The security of online payment.
Online transaction is a non-real-time settlement transaction. Consumers usually pay by credit card or other payment methods, and operators only deliver goods or provide services after receiving the payment, which is different from real-time settlement of consumer transactions in life. The openness of the network increases the risk that consumers' property will be infringed. Consumers may bear the following risks when using electronic money to pay for goods: online payment information is inadvertently or intentionally leaked to third parties after being collected by manufacturers or banks, or even fraudulently used [5]; Illegal elements steal or illegally crack the account password, resulting in the theft and loss of electronic money; Consumers' unauthorized use of credit cards causes losses; Credit card fraud; The payment system is illegally invaded or attacked by virus.
In order to ensure the security of online payment, in addition to taking measures such as self-discipline and standardization of the parties to ensure the security of transactions from the network technology, it is also necessary to legally clarify the compensation responsibilities of banks and operators and balance their rights and obligations with consumers. Judging from the current legal norms of credit cards in various countries, most of them focus on protecting consumers. For example, the Z regulation of the United States stipulates: "Consumers bear limited liability, and operators bear greater risks for losses caused by fraud; The responsibility for investigating the incident is mainly borne by the issuing bank and the credit card company. " China can learn from the legal contents of other countries and adopt the legislative principle of focusing on the protection of consumers' rights and interests when formulating laws related to electronic money payment.
6. Protection of online consumer privacy.
In online consumption, a large amount of private information and data are collected, stored and transmitted by the information service system, and consumers' privacy rights are inevitably threatened. For example, network operators use or even buy and sell consumers' personal information in pursuit of profits and interests; Personal credit card information is stolen or lost due to bank fault or hacking; A lot of spam harassment, etc.
At present, there is no special law to protect the right to privacy on the internet in China, but the international community has greatly strengthened the protection of the right to privacy under the network environment. The United States, Britain, Germany and other countries have already enacted laws to protect citizens' online privacy, and China should also put the protection of online privacy into the legislative agenda as soon as possible. The following points should be considered in the legislative content: (1) stipulate the obligations of operators; (2) The act of collecting personal information must be legal. Operators must be within the scope of the law, with the permission of the competent department and the consent of the parties before collecting; (3) The use of personal information must be safe; (4) stipulate the legal liability for violating the right of network privacy; (5) Formulating special protection clauses for minors' online privacy.
7. It is difficult for consumers to claim damages.
The consumer's right to compensation for damages is also called the right of claim. The premise of realizing this right is that consumers have suffered certain personal or property damage in the course of trading or after using goods and receiving services. The claim for damages is actually a kind of relief right given to consumers by law when their interests are damaged.
The characteristics of the network and the lack of relevant laws have caused a lot of disputes between network operators and consumers. When consumers find that their rights and interests have been infringed, they cannot or cannot seek relief because they cannot know the true identity of the operator or the operator is in other areas. Moreover, the litigation cost of online transaction disputes is high, it is difficult to prove, and the uncertainty of jurisdiction and legal application also leads consumers to give up their right to relief easily. With the rapid development of Internet and e-commerce, how to better protect the development of online transactions, protect the legitimate rights and interests of online consumers, and ensure that online consumers can seek relief quickly and conveniently after being infringed has become a new problem for legislation.
Third, the construction of consumer protection system in e-commerce.
The law stipulates the obligations of network operators.
1, online information disclosure obligation
In e-commerce, operators have a strong advantage, and the asymmetry of transaction information makes consumers often fall into a state of ignorance and be at a disadvantage in the transaction. OECD's Guide to Consumer Protection in E-commerce (month1999+February) clearly points out that the information that network operators should disclose includes three aspects: operator identity information, commodity or service information and transaction information, which can be used as a principle for reference in China's legislation.
In order to protect consumers' right to know and fair trade, the law should clearly stipulate that operators have the obligation to disclose true and complete trading information and provide consumers with clear and comprehensive trading conditions. Such as: fees charged or borne by consumers, terms of service, delivery and payment terms, purchase restrictions or conditions (guardian's permission, geographical and time restrictions, purchase amount restrictions, etc.). ), effective after-sales service information, guarantee and guarantee terms, etc.
2. Don't abuse the exemption obligation of standard terms.
Network format contract is necessary in online consumer transactions, and its effectiveness can be confirmed according to Contract Law and Consumer Protection Law. As long as it conforms to the law and does not harm the legitimate rights and interests of consumers, the format contract is binding on both parties. On the other hand, it is of great significance to restrict the exemption clause from the legal point of view, which is of great significance to maintain the fairness of transactions and develop online transactions. For example, the contract contains restrictions on invalid terms; Restrict the effectiveness of unreasonable clauses; Clauses that reduce or exempt the operator's responsibility or restrict the rights of consumers should be included in the contract by means of special reminder, otherwise it is a "overlord clause with unequal rights".
3. Seriously perform the contractual obligations.
In the performance of e-commerce contracts, operators often delay the performance of contracts, perform contracts with defects, and fail to perform after-sales service obligations. In addition to the above-mentioned suggestions, the longest performance period and "hesitation period" should be stipulated in the law, and the operator's commitment obligation, guarantee after-sales service obligation and compensation obligation should also be stipulated. Of course, in order to prevent consumers from abusing their rights, some exceptions can be stipulated.
4. Obligation to protect consumers' personal information
In addition to the measures mentioned above, network operators can also standardize the protection of consumers' personal information from some details, such as: operators should ensure the unity and confidentiality of data; The network services provided must have technical support to protect consumers' information security; Inform consumers of technical measures to reduce risks; Must be responsible for the damage caused by the use of consumer personal information; Operators who transfer consumers' personal information to a third party without authorization, thus causing damage to consumers' rights and interests, shall bear corresponding responsibilities.
(B) the establishment of online transaction dispute resolution mechanism
The protection of consumers' rights and interests should not only be guaranteed in advance by legislation and system, but also ensure consumers' rights and ways to seek relief after disputes occur. China's Consumer Protection Law gives consumers the right to seek relief when they are infringed, but in e-commerce, it is difficult to find a remedy. The author thinks that we can construct the settlement mechanism of online transaction disputes from the following three aspects:
1, establish small claims procedure.
In online transactions, most of them are small transactions. When there are problems in the performance of the contract, consumers often choose to give up relief in the face of litigation costs, litigation difficulties and other issues. Therefore, the establishment of effective small claims procedure is of great significance to facilitate citizens' small disputes, especially to protect the interests of online consumers.
The essence of small claims procedure is to provide a judicial form to relieve small rights for the general public, which has the characteristics of low filing amount, simplicity and high efficiency. The trial stage of small claims procedure should be different from that of ordinary proceedings. For example, the trial of small claims in Taiwan Province Province of China has the following special provisions: it can be conducted at night or on rest days; Conduct oral arguments to end the lawsuit; In order to achieve the purpose of simple and quick trial, there are special provisions on the investigation of evidence; Strictly limit the alteration, addition and counterclaim of litigation; Use table to judge; In principle, the system of first instance and final adjudication shall be implemented to limit the parties' appeals.
Many countries in the world have established courts to accept small claims, such as the United States, Japan, Singapore and Australia. We can learn from the small claims procedures in these countries and Taiwan Province, and build a set of small claims procedures with China characteristics. This can not only solve the problem of litigation jurisdiction of network disputes, but also easily solve various disputes of consumers with small targets and simple cases across regions.
2. Establish an online complaint center.
China Administration for Industry and Commerce and China Consumer Rights Protection Association can jointly establish an authoritative online complaint center to receive online consumer complaints from all over the country. The information complained in the center shall be forwarded by the center to the industrial and commercial bureau or consumer rights protection association where the complained network operator is located, and the local industrial and commercial bureau or consumer rights protection association shall check and handle the complaint information; You can also consider setting up a department under the Consumer Protection Association. After receiving the complaint materials forwarded by the center and checking them, the department will negotiate with the operators on behalf of consumers. This makes it unnecessary for consumers to consider geographical restrictions and relief costs when seeking relief. At the same time, the author believes that consumers have the obligation to find the location of the operator, so that the center can handle complaints from all over the country quickly and efficiently and ensure the legitimate rights and interests of consumers.
3. Establish an online dispute resolution mechanism.
Online dispute resolution mechanism (ODR) refers to "all ways to solve disputes arising from e-commerce contracts between enterprises and consumers by non-court but impartial third parties on the Internet." It embodies the principle of party autonomy to the greatest extent. It has the characteristics of flexible dispute settlement methods and applicable rules, high dispute settlement efficiency and low dispute settlement cost. Online mediation and online arbitration are the most common online dispute resolution methods.
The basic principle of network mediation is the same as traditional mediation, but the difference is that the whole process of mediation is carried out on the network. The characteristics of online mediation are:
(1) can better reflect the wishes of the parties. The parties can freely decide whether to adopt this method or not, and they can also freely decide whether to participate in the procedure; (2) Its procedures are less bound by legal norms. In network mediation, a reasonable solution can be sought through a third party.
(3) The third party is a voluntary and selfless third party. In the investigation procedure of Oline ADR in the United States, consumer associations, business associations or some neutral institutions usually mediate.
Due to the limitation of network technology in providing evidence to the parties, online arbitration is rarely applied to online transaction disputes. At present, online arbitration mainly solves domain name disputes. The main problems in establishing and developing online arbitration are: (1) evidence submission. In online transactions, there may be written or other forms of evidence besides data messages, so how to submit evidence to the arbitration tribunal becomes a difficult problem; (2) Determining the place of online arbitration. Because the online arbitration procedure is completely conducted online, it is not easy to determine the place of arbitration, which has an important impact on the settlement of disputes arising from transnational transactions. (3) The effectiveness of the arbitral award. It is not clear how legally binding the online arbitration award is on both parties and whether it has judicial force.
In my opinion, in order to better protect the rights and interests of online consumers and develop e-commerce faster, it is necessary to establish an online dispute resolution mechanism with China characteristics, which must be led by relevant functional departments (such as the State Administration for Industry and Commerce and the Ministry of Information Industry), and relevant national associations or organizations are responsible for dispute resolution (such as China Consumers Association and China Electronic Commerce Association) to ensure the fairness and authority of dispute resolution.
(3) Other protection methods
Protecting the rights and interests of online consumers is a systematic project, and it is difficult to achieve comprehensive protection from the perspective of legislation and justice. It involves the government, industry, consumers themselves and other aspects, and even involves the credit system of the whole society. This requires us not only to discuss the protection of consumers' legitimate rights and interests from the perspective of legislation and justice, but also to guide the realization of consumers' legitimate rights and interests from other aspects, so as to truly establish a network consumer rights and interests protection system: 1 and strengthen administrative supervision. In the underdeveloped stage of market economy, strong government supervision plays an important role in reducing the occurrence of violations of consumer rights and interests. 2, the implementation of industry self-discipline. Due to the characteristics of online transactions, industry self-discipline is often more effective than administrative supervision. Therefore, we should give full play to the power and role of industry self-discipline. 3. Establish a reputation evaluation mechanism. Network economy has high risks and uncertainties, so it is of great significance to establish a perfect credit evaluation system for preventing transaction disputes in advance and protecting consumers' legitimate rights and interests. The government or the law authorizes the establishment of an authoritative and neutral reputation evaluation agency and a reputation inquiry system to let consumers inquire about the reputation of network operators, which can play a warning role for operators who cheat and improperly perform their contractual obligations in online transactions.
(Author: China Network Law Network)
References:
1, Gao Fuping: Research Report on Legal Regulation of Internet Transactions, Beijing, Peking University Press, April 2005.
2. Zhang Xinbao: Research on Internet Infringement, Beijing, Renmin University Press, 2003, 1 1.
3. Pang Minying: Research on the protection of consumers' rights and interests in e-commerce, Hebei Law, 2005, (7).
4. Sun Yurong: Fraud in Civil Law and the Application of Article 49, Application of Law, 2005, (4).
5. Jiang Hong: "Analysis of Internet False Advertisements and Protection of Consumers' Rights and Interests", Journal of East China University of Political Science and Law, 2003, (2).
6. Jin Guilan: Electronic Transaction and Payment, China Electric Power Press, September 2004.
Precautions:
Zhang Yulin is the pen name of Zhang Linzhi.
[2] Information asymmetry refers to the information asymmetry of market participants in market transactions. The factors that lead to it are: 1, the complexity and technology of goods or services. 2. Diversification and formatting of trading methods.
[3]ISP, Internet service provider, network service provider. Internet content provider, network content provider.
[4] See Gao Fuping: Research Report on Legal Rules of Online Transactions, Peking University Publishing House, 2005, p. 33.
[5] such as account number, password and ID number.