Model text of e-commerce and legal papers 1: Perfection of legal mechanism of e-commerce product quality supervision from the perspective of governance modernization Abstract: The economic development power brought by e-commerce is amazing, but it is also accompanied by many product quality problems. The traditional way of product quality supervision has been unable to adapt to the e-commerce transaction mode, introducing modern governance thinking, drawing lessons from overseas experience, using information technology and big data resources, innovating supervision methods, and forming a long-term legal mechanism of e-commerce product quality supervision with multi-agent and multi-participation, in order to meet the challenges posed by the new normal of "internet plus" to e-commerce product quality supervision.
Keywords: modernization of governance; Legal mechanism of quality supervision of e-commerce products; Trading platform; third party certification body
China Library Classification Number: D630 Document Identification Number: Part A Number: 2095-4379-(2016)14-0210-02.
About the author: Wan Ziqian (1996-), female, Han nationality, Shangrao, Jiangxi, Southwest University of Political Science and Law, undergraduate, research direction: economic law.
I. Introduction
The concept of "modernization of governance" originates from the national political field. The Third Plenary Session of the 18th CPC Central Committee regards "promoting the modernization of national governance system and governance capacity" as the overall goal of comprehensively deepening reform, which not only endows "governance modernization" with objective rationality, but also endows it with tool rationality. E-commerce enables sales and other business activities to be carried out efficiently, but as a new format, the quality supervision of e-commerce products has also become a new topic.
Second, China's e-commerce product quality supervision status
In the case that the quality status of e-commerce products is worrying, the quality supervision status of e-commerce products in China is not objective. In terms of legislation, China's current product quality supervision laws mainly regulate the transaction subjects and links in offline transactions, and the legal level norms specifically for e-commerce product quality supervision are blank. In law enforcement, short-term policy supervision is very common, and the powers and responsibilities between supervision departments are unclear, ignoring the characteristics of e-commerce. "The traditional product quality management mechanism has collapsed and failed".
The Third Plenary Session of the 18th CPC Central Committee regards the modernization of national governance capacity as the overall goal of comprehensively deepening reform. Governing the country according to law is an inevitable requirement to realize the modernization of national governance capacity, which not only brings new ideas to China's supervision of the quality of e-commerce products, but also puts forward new requirements, that is, we must respond to the challenges posed by the characteristics of e-commerce to product quality supervision by improving the legal mechanism.
Thirdly, suggestions on improving the legal mechanism of e-commerce product quality supervision from the perspective of governance modernization.
"The national governance system includes not only the governance of society by the party and the government, but also the independent governance of society and the cooperative governance with the government." (2) Under the guidance of instrumental rationality of governance modernization, social governance is the basic orientation to improve the legal mechanism of e-commerce product quality supervision, that is, to break the government's top-down single-subject governance model, give play to the market-oriented position of trading platforms, and encourage social third parties to participate in product quality supervision.
(A) the formation of a combination of government and enterprises e-commerce product quality supervision subject.
The fluidity and virtuality of e-commerce make it very difficult to judge where the product quality problems actually occur. In reality, there are overlapping and uncoordinated supervision of various departments. This paper holds that in order to eliminate the supervision dilemma of "Jiulong Water Control", China can learn from Japan's experience, break through the traditional division of power based on the occurrence of product quality problems, set up a comprehensive e-commerce product quality supervision department, and manage it from cradle to grave by specific institutions, so as to clarify the power subject of e-commerce product quality supervision and prevent the phenomenon of shirking responsibility. In addition, due to the cross-regional nature of online transactions, China should also clarify the principle of territorial investigation and supervision, and clarify the geographical division of e-commerce product quality supervision rights.
(2) Improve the market access mechanism of e-commerce.
For the sake of interests, the trading platform has an ambiguous attitude towards the qualification examination of operators in the station, which has caused great obstacles to product quality supervision. This paper holds that China should improve the market access mechanism of e-commerce, adopt compulsory industrial and commercial registration for enterprises in trading platforms and compulsory individual industrial and commercial registration for individuals, and improve the industrial and commercial economic household registration database; For cross-border e-commerce, it is necessary to implement the filing system for cross-border e-commerce enterprises, which not only makes the responsible subject of product quality traceable, but also "helps to play the regulatory role of the market, optimize resource allocation, eliminate some small online merchants who do not have operational strength, and improve product quality".
(3) Clarify the obligation of the trading platform to carefully review the quality information.
In the field of e-commerce, the asymmetry of quality information between buyers and sellers is particularly obvious because consumers can't actually contact goods to obtain real product quality information. Without the intervention of other mechanisms, both sides of product transaction can't change the information asymmetry, which will lead to the "lemon problem". To solve this market failure, we must tell consumers the real product quality information. Therefore, this paper holds that China should establish an inspection and monitoring system for goods and service information released by operators who sell goods or provide services through platforms, endow service providers of online trading platforms with the obligation to review quality information, and delete false product quality information in time. When the platform fails to fulfill its review obligations, it is clear that the trading platform bears joint and several liabilities, forcing the platform to fulfill its quality management obligations. The government supervision department urges the platform to fulfill the "audit-deletion" obligation, and the operators in the platform supervise the release of real quality information, and build a closed-loop system for quality supervision of e-commerce products.
(4) Improve the legal mechanism of quality certification led by third-party institutions.
The modernization of state governance emphasizes the importance of cooperative management of political power owners, managers, stakeholders and other social subjects. At the same time, compared with government agencies, third-party agencies have deeper professional capabilities, more complete testing conditions and more active implementation measures. China should improve the legal mechanism of quality certification led by third-party institutions. On the one hand, China can learn from the experience of Taiwan Province Province. ⑤ Establish an e-commerce product quality certification system led by a third-party organization, which will carry out quality certification, and add the credit records of online sales to the product quality certification to ensure the fairness and effectiveness of certification and encourage e-commerce operators to improve product quality. On the other hand, "based on the regulatory game among the government, enterprises and third-party certification bodies, we can know that the' rent-seeking' behavior in quality certification is related to the government's supervision of third-party certification bodies." 6. In order to prevent the rent-seeking behavior between enterprises and third-party certification bodies, China should also establish a fair e-commerce product quality certification system through the government's intervention in the third-party product quality certification system and post-certification supervision.
(5) With the joint efforts of many parties, improve the legal mechanism of supervision.
The quality supervision of e-commerce products is an interlocking process. In order to realize the seamless connection between online and offline quality supervision, it is necessary to establish a multi-party legal mechanism for quality supervision of e-commerce products.
1. Establish a traceability mechanism for e-commerce products.
In e-commerce, all network behaviors are recorded, and the Internet of Things can monitor all data in the circulation field. In fact, the digitization of trading links is to help product quality supervision. However, due to the existing regulatory model can not effectively connect online and offline information, resulting in product traceability difficulties. This paper holds that a single government regulatory department is not enough to meet the big data demand of product traceability in the context of internet plus. On the one hand, China should make full use of the traceability function of subject identification and article coding on the basis of strict market subject registration system; On the other hand, online trading platform service providers are required to open data resources, combine the product quality certification system of third-party institutions, promote cross-regional traceability system docking and information exchange, establish a unified e-commerce product traceability system, implement law enforcement measures, and improve the quality source control ability. 2. Establish an e-commerce product quality information sharing system under risk early warning.
"The transaction cost analysis method put forward by Coase in Social Cost Problem is the basic analysis method of law and economics, and the core problem of the prevention model developed from it is to design legal regulations after giving the optimal prevention level." ⑦ However, the existing product quality supervision in China still stays at the level of post-event response and lacks the risk early warning mechanism. Therefore, e-commerce product quality supervision should shift from passively dealing with product quality problems to focusing on product quality risk early warning, improve the sharing mechanism of e-commerce product quality information, summarize the quality information of trading platforms, the credit records of operators in stations and the sampling results of supervision departments, establish an e-commerce product quality information sharing platform, and then use big data technology to carry out risk early warning and industry quality analysis, so as to prevent product quality problems from the source and realize risk management. By optimizing the allocation of product quality information resources, improving the comprehensive utilization efficiency of information, improving the sharing of regulatory information among trading platforms, departments and regions, we can form a joint force of supervision, liberate product quality supervision from micro-inefficiency, and improve supervision efficiency.
Four. conclusion
The product quality problems in the traditional business model also exist in the field of e-commerce, but the gaps and weak links in the legal mechanism of product quality supervision rooted in the traditional entity business model make the product quality supervision of e-commerce face an embarrassing situation that there are laws to follow and no standards to follow. "People-oriented legislation", quality supervision can not rely solely on government departments. The modernization of national governance requires us to introduce online trading platform service providers and third-party certification bodies. Form a multi-participation, responsibility-sharing and interconnected legal mechanism for quality supervision of e-commerce products, standardize the behavior of e-commerce market participants with a perfect legal system, build a legal environment for e-commerce development, and guide the healthy development of e-commerce industry.
[Note and release]
1 yellow people. Explore the construction of a new mode of e-commerce product quality supervision [J]. China Bureau of Quality and Technical Supervision, 20 15.5438+02.
(2) Xu Xiaoquan. Viewing the direction of county-level large-scale department system reform from the modernization of national governance system [J]. Leadership Science, 20 14(9).
③ Sun Lizhan. Electronic commerce law [M]. Fujian: Xiamen University Press, 20 13.26.
④ _ _ Germany. Market mechanism and product quality development [M]. Guangdong: Jinan University Press, 2015,3:174.
⑤ Sosa (Taipei Consumer Electronic Commerce Association) in Taiwan Province Province, China has set up excellent electronic store logo and information transparent electronic store trust logo as e-commerce certification logo.
⑥ Liu Changyu and Yu Tao. Study on the tripartite game relationship of green product quality supervision [J]. China population? Resources and Environment, 2015 (10):174.
All landowners He JOE. Product quality supervision system: problems and countermeasures [D]. Fudan university, 2009+07
E-commerce and Legal Papers Model 2: Research on Legal Issues of Intellectual Property Protection of E-commerce Platform Abstract With the acceleration of global economy and informatization, emerging network technologies are changing people's lifestyles all over the world, and mankind is gradually entering the era of network economy. The emergence of e-commerce, a virtual shopping method, is bringing profound and extensive changes to all aspects of people's lifestyle, and has also had an unprecedented far-reaching impact on the development of world economy and trade. The emergence and development of e-commerce, on the one hand, has brought a lot of convenience and benefits to businesses and consumers, but on the other hand, there are many drawbacks of e-commerce, such as electronic platform infringement, online shop infringement and so on. Based on the current situation of intellectual property protection in China's e-commerce, this paper expounds the problem of intellectual property infringement in e-commerce, and puts forward corresponding countermeasures for the existing problems.
Keywords: e-commerce development status, intellectual property countermeasures
China Library Classification Number: D997. 1 Document Identification Number: A.
1 Intellectual property protection background of e-commerce platform
1. 1 the needs of the rule of law practice in China
2011April 2 1 day, in order to further purify the market environment of e-commerce and intensify the crackdown on the infringement of intellectual property rights and the manufacture and sale of fake and shoddy goods in the field of e-commerce, the state issued the Notice on Further Promoting the Action of Combating the Infringement of Intellectual Property Rights and the Manufacture and Sale of Fake and Inferior Commodities in the field of e-commerce. On July 8 of the same year, the Ministry of Commerce issued the Notice of the General Office of the Ministry of Commerce on Summarizing the Special Action against Infringement and Counterfeiting in the Field of E-commerce, especially pointing out that it is urgent to crack down on intellectual property infringement in the field of E-commerce. In 20 15, the e-commerce department of the Ministry of Commerce predicts that the e-commerce transaction volume (including B2B and online retail) will reach about 13 trillion yuan in 20 14, with a year-on-year increase of 25%.
1.2 practices of countries in protecting intellectual property rights in e-commerce
1.2. 1 USA
The application field and scale of e-commerce in the United States are far ahead of other countries. It is the birthplace of e-commerce and the developed area of e-commerce. At present, about 50% of global e-commerce transactions take place in the United States. In the global business websites, the United States accounts for more than 90%. This is inseparable from a series of conditions in the United States, such as good network conditions, many highly educated netizens, sound legal system, perfect electronic payment methods and mature social credit system. In terms of e-commerce legislation, there are the Uniform Electronic Transactions Act (1999) and the International and Domestic Electronic Signatures Act (2000) of the United States.
In the past 30 years, the implementation of American intellectual property strategy has been continuously extended along three tracks. First, according to the national interests and the competitive needs of American enterprises, we will constantly revise and improve traditional intellectual property legislation such as patent law, copyright law and trademark law, expand the scope of protection and strengthen the protection. In recent years, with the development of biology, information and network technology, some emerging technical forms have been continuously included in the scope of intellectual property protection, such as the concept of network marketing model, which has been included in the scope of patent protection. In terms of functional genes, there are more than 4,000 patent applications in the United States, which has obvious intellectual property advantages; Second, the state strengthens the adjustment of intellectual property interests and strengthens legislation in encouraging transformation and innovation; Third, in international trade, on the one hand, it suppressed competitors through the "Special Clause 30 1" of its comprehensive trade bill, on the other hand, it actively promoted the conclusion of the WTO Agreement on Intellectual Property Rights (TRIPS), thus forming a set of new international trade rules that are beneficial to the United States.
1.2.2 Korea
South Korea adopted and implemented the Basic Law on Electronic Commerce on 1999. The purpose of this law is to ensure the safety, reliability and fairness of transactions by clarifying the legal effect of electronic information. This law puts forward a series of legislative provisions on the protection of intellectual property rights in e-commerce. Firstly, the concepts of e-commerce and online store are redefined. Secondly, the qualifications of "online operators" are more stringent. Thirdly, in the formulation and implementation of e-commerce promotion scheme, the protection measures of intellectual property rights are especially pointed out.
2 China e-commerce platform, the reality of intellectual property infringement analysis
2. 1 Characteristics of selling fake goods online
There are many varieties and large quantities of online fakes. As an open online sales platform, Taobao is undoubtedly the most mature C2C e-commerce platform in China. Taobao 20 10 online shopping data shows that in 20 10, Taobao registered users reached 370 million, and the number of online goods reached 800 million. At the same time, the transaction volume of B2C business represented by Taobao Mall quadrupled in 20 10, and this growth rate will be maintained in the next few years. The huge market potential and convenient shopping environment have created the miracle of Taobao's online sales, and also spawned the rapid development of online fakes.
The development of online fakes is strong and fast. According to iResearch's 20 14 Internet Economy Core Data Report, the transaction scale of China e-commerce market was 20 12.3 trillion yuan, up 21.3% year-on-year; Among them, B2B e-commerce market accounts for over 70%, online shopping accounts for over 20%, and online shopping accounts for a substantial increase; Small and medium-sized enterprises B2B e-commerce market revenue growth of more than 30%; The annual penetration rate of online shopping exceeded10% for the first time; The growth rate of mobile shopping market exceeds 200%.
Online fakes are mainly imitations and have strong concealment. In recent years, due to the increasing protection of intellectual property rights in China, e-commerce companies are more and more determined to eliminate the online trading environment, and online counterfeiters who keep pace with the times have also given up the low-level business model of selling fake and shoddy goods and turned to imitate and copy internationally renowned brands. These products have a strong concealment, and it is difficult for consumers who do not have professional identification knowledge to easily identify them from the packaging and appearance of the goods in a short time.
2.2 the practical limitations of consumer rights protection
From the nature of trading behavior, buying fake knowledge is a rational behavior based on the voluntary principle. Under this condition, consumers usually have sufficient information about counterfeit goods, and both parties to the transaction reach an understanding of the transaction on a free and voluntary basis, which is a game equilibrium reached by pursuing the maximization of interests.
Judging from the attributes of traded goods, online fakes can meet the specific consumption needs of consumers. Although it is different from genuine products in quality, packaging and efficacy, fake products can satisfy a special psychological feeling that consumers can't consume real products with limited income.
3 e-commerce intellectual property protection measures
(1) Strengthen legislative practice and legally regulate the infringement of intellectual property rights in e-commerce. Strengthen macro-legislative work and actively improve legislation. Actively promote relevant legislative work, revise intellectual property laws such as trademark law and copyright law and their implementation regulations in a timely manner, and establish and improve Internet intellectual property systems and laws.
Clearly define the concepts of e-commerce, online stores and operators. The definition of these important concepts is an important prerequisite for protecting intellectual property rights in e-commerce and investigating intellectual property rights violations. Because if you don't clearly define important concepts such as online stores and e-commerce, it will lead to unclear responsibilities and difficult accountability.
Clarify the responsibilities and obligations of the e-commerce platform to ensure the health and stability of e-commerce. The responsibility and obligation of e-commerce platform can be said to be an important party besides buyers and sellers to some extent. E-commerce platform provides effective shopping channels and services. If the supervision is weak, the intellectual property protection of e-commerce will be chaotic. Therefore, it is necessary to clearly define the responsibilities and obligations of e-commerce platform in legislation, such as regularly checking illegal online stores and designing strict online store application process to ensure the brand health and product quality of e-commerce. (2) Strengthen the government's supervision function and crack down on the infringement of intellectual property rights in e-commerce. First, the central unified leadership, local specific supervision. In the central core policy, we should adhere to the principles of encouraging creation, protecting according to law and scientific management. It is necessary to highlight key points, focus on solving outstanding problems in current intellectual property protection, and concentrate on cracking down on infringement and counterfeiting. We should also focus on the long-term, strengthen the construction of intellectual property system and actively create a good legal environment for intellectual property. In terms of local specific supervision, it is emphasized that all localities should strengthen supervision over e-commerce platforms; Start the rectification of online stores suspected of selling infringing and fake and shoddy goods; All regions and relevant departments should, through various means, timely expose illegal enterprises and typical cases that infringe intellectual property rights and manufacture and sell fake and shoddy goods in the field of e-commerce. Second, improve the policy system of online shopping intellectual property protection and establish an effective online shopping intellectual property administrative management model. In the policy system of intellectual property protection, we should strengthen the management of intellectual property audit in the process of government procurement and persist in preventing infringing and counterfeit goods from entering the government procurement channels. Strengthen the construction of intellectual property rights protection assistance platform, improve the acceptance mechanism of intellectual property reporting complaints, and establish a reward system for reporting complaints. Establish and improve the early warning and emergency mechanism of intellectual property rights, and improve the ability of enterprises to prevent and solve intellectual property disputes. Third, strengthen the judicial protection of intellectual property rights in e-commerce, improve judicial policies and exercise judicial functions. On the one hand, the judicial department should strengthen the standardization of judicial policies on intellectual property rights and standardize the exercise of judicial discretion on intellectual property rights. According to the different characteristics and protection needs of all kinds of intellectual property rights, the Supreme People's Court has defined the macro-judicial policy of classification, differential treatment, tempering justice with mercy and moderately tightening; On the other hand, the judicial department should actively promote judicial reform in the field of intellectual property rights and further improve the trial system and working mechanism of intellectual property rights. The people's courts have continuously strengthened their awareness of judicial reform of intellectual property rights and continued to do a good job in the impact of the implementation of the national intellectual property strategy on the work of the people's courts.
(3) Strengthen the supervision of e-commerce platforms to protect intellectual property rights from infringement. The e-commerce platform cooperates with relevant departments to improve the supervision of online shopping platforms and strengthen commodity certification capabilities. The rules established around the protection of intellectual property rights in transactions must be a comprehensive system, involving not only all fields of intellectual property law, but also many legal uncertainties such as store names, and more importantly, an efficient complaint acceptance mechanism. Most e-commerce platforms have a relatively perfect model in accepting and handling user complaints, but the supervision of online commodity certification is in a vacuum. Extend the traditional market commodity certification and sampling supervision means to the network platform, and strengthen the commodity certification ability.
(4) Establish consumers' awareness of intellectual property protection and improve the professional ethics of online stores. First, change online shopping consumption habits. Help consumers actively understand the intellectual property rights of e-commerce, clarify the importance of intellectual property issues involved in e-commerce, clarify relevant laws and regulations, and earnestly fulfill relevant obligations. Second, improve the professional ethics of online stores. On the premise of actively abiding by the law, the online shop on the other side of e-commerce still needs to improve its professional ethics, earnestly fulfill its obligations, actively safeguard the legitimate rights and interests of brands in the process of selling goods, and protect intellectual property rights in online shopping.
4 conclusion
The problem of intellectual property protection in e-commerce arises in the era of rapid economic development. However, the development of a new thing is always accompanied by problems. In e-commerce, due to the huge interest temptation and the convenience of the network platform, some online shop merchants, regardless of legal deterrence and moral condemnation, take risks to sell fake goods, sell pirated goods, trade under the guise of other people's patents and other violations of intellectual property rights. Therefore, it is of great significance to strengthen the research on the legal issues of intellectual property protection of e-commerce for enriching the related research of e-commerce and intellectual property protection in China and constructing the legal system of intellectual property protection of e-commerce.
refer to
[1] Zhang Long feed. Electronic Commerce from the Perspective of Intellectual Property [J]. Intellectual Property (CSSCI), 2008(09).
[2] Dong. E-commerce, fakes once accounted for 70% [N]. Bao Jing, 2009(02)B2 1 financial edition.
[3] China Electronic Commerce Center. Four reasons why online fakes are hard to eradicate [Z]. Billion Power Network, 20 10-03- 10.
[4] The latest statistics of iResearch. Alibaba Research Center, 20 14.
[5] Taobao Corporate Social Responsibility Report. Alibaba research center, 20 1 1.
[6] 20 1 1 China Action Plan for Intellectual Property Protection. China National Intellectual Property Administration, 20 1 1.
[7] Notice on Further Promoting the Action of Combating Infringement of Intellectual Property Rights and Manufacturing and Selling Fake and Inferior Commodities in the Field of Electronic Commerce. Ministry of Commerce, Ministry of Industry and Information Technology, Ministry of Public Security, People's Bank of China, General Administration of Customs, State Administration for Industry and Commerce, General Administration of Quality Supervision, Inspection and Publication (Copyright Bureau), China National Intellectual Property Administration, 20 1 1.