Xue Jun: the legitimacy review of social e-commerce model should be considered from six aspects
[Beijing Direct News Network November 8th] (Research on Internet rule of law)Recently, with the support of the Supreme People's court and China law society, the Internet rule of law forum was held in Hangzhou. With the theme of "legalization of network social governance", 147 people from all over the country gathered to discuss the legalization of network social governance.
In his speech, Mr. Xue Jun, vice president of Peking University Law School, director and professor of e-commerce law research center, focused on the problems faced by social e-commerce, and discussed the basic ideas of the current legality review of new e-commerce models.
The basic idea of examining the legality of the new e-commerce model -- centered on social E-commerce
China's e-commerce is in the process of rapid iterative development and model innovation, forming a pattern of converged platform e-commerce as the main body, plus various new types of e-commerce, competing with each other and complementing each other. In the process of e-commerce development, the legitimacy and compliance of the new e-commerce model has attracted more and more attention, and even become the pain point of industry development. The problems faced by social e-commerce are especially typical. "Involving biography" has become the "sword of Damocles" hanging over the top of social e-commerce practitioners. In this regard, we need to think deeply and study carefully.
I think three basic principles should be followed to judge the legitimacy of the new e-commerce model. The first is the principle of neutrality. In principle, all business models are equal before the law. The law should be neutral to any business model, do not discriminate against any business model, and provide a fair competition system environment. The second is the principle of encouragement. Laws, regulations and policies, including the e-commerce law (Article 3) and the document issued by the State Council not long ago to encourage the development of platform economy, all emphasize the encouragement of the development of new e-commerce formats. Regulators and law enforcers should adopt an inclusive and prudent attitude towards the new e-commerce model. For some forms of business innovation, it is not appropriate to act hastily to stifle the innovation and development of business models. The third is the principle of substantive judgment. To determine that a business model is illegal, we should not adopt the standard of mechanical formalization, but should specifically demonstrate and analyze: whether the relevant business model has substantial social harm? Whether the relevant behaviors disturb the social and economic order? Whether the relevant activities are creating real value? Whether the whole business plan and operation lead to an inevitable business logic If we can't give a clear and positive answer to these four questions, we can't confirm that the relevant business model has problems on the legitimacy level.
So how to distinguish legal social e-commerce from illegal pyramid selling? Based on the above principles, we can consider the following six aspects.
First, it analyzes the sources of funds (profits) shared among various entities in relevant business models. If the relevant funds come from the normal commission obtained from the real product sales, rather than the contribution made by offline to online in various ways, then there is no problem.
Second, it analyzes whether the buyer of the terminal goods or services has the right to return and exchange goods fully and effectively guaranteed. If the seller of the goods ensures this right of the end buyer, there should be no problem.
Third, the team pay model itself does not have the illegality of course. We should consider whether the pay structure designed by the relevant business model will generate an obvious unfair incentive, so that the buyers of products or services are mainly to improve their rank in the organization, rather than to purchase products to meet the real consumption demand. If this situation is not widespread, there should be no problem.
Fourth, if we want to buy a certain product or service as a prerequisite for entering the social e-commerce promotion and distribution system, we need to analyze specifically. If we remove the binding relationship between the sales of this kind of goods and business opportunities, whether the sales volume of related products will decline dramatically. If so, we can think that the real needs of consumers are only a small factor, otherwise, there should be no problem.
Fifthly, we need to combine "pulling people's heads" with "charging entry fees" for judgment, rather than independent judgment. In other words, the purpose of pulling people's heads is to collect entry fees. The entry fees paid by the latecomers become the basis for supporting the continuous operation of the relevant system, so there are problems in this mode. On the contrary, if the main purpose of pulling people's heads is only to expand the number of promoters who participate in the goods or services, then the behavior of pulling people's heads should have no problem. Similarly, it is no problem to charge entry fee, whether it is induced by obtaining high return and whether it is obviously fraudulent.