What exactly does "Seven Days No Reason Return" apply to? There are problems with the consumption after-sales in the live broadcast room, but the merchants and the big anchors blame each other? In recent years, online consumption such as e-commerce online shopping, live streaming with goods, takeaway catering and so on has become one of the mainstream consumption methods of people, but at the same time, related consumer disputes have also emerged in an endless stream.
In order to properly try online consumer dispute cases, protect the legitimate rights and interests of consumers in accordance with the law, and promote the healthy and sustainable development of the network economy, Red Star Capital Bureau noted that on the evening of December 27, the Supreme People's Court issued the Provisions on Several Issues Concerning the Application of Law in the Trial of Online Consumer Dispute Cases (I) (Draft for Comments), which was open to the public for comments before January 7, 2022.
In this regard, a number of industry experts and scholars made a detailed interpretation to the Red Star Capital Bureau. Cui Lili, executive director of the E-commerce Research Institute of Shanghai University of Finance and Economics, said, "Overall, the most eye-catching aspect of the opinion draft is whether it is supportive of some ambiguous situations in online consumer disputes, and it pays more attention to the protection of consumer rights and interests and the legitimate operation of platform operators." ”
Live broadcast room with goods According to visual China
Seven days without reason to return:
As long as the merchant promises, the four excluded items can also be returned
Red Star Capital Bureau noted that the SPC's draft for comment on the first judicial interpretation on the trial of online consumer dispute cases has a total of 24 articles, which further clarifies the legal application of five aspects of disputes, such as contractual rights and obligations, online consumer fraud, online live streaming with goods, and takeaway catering.
Screenshot of the official website of the Supreme People's Court
"The draft opinions make the distinction between the responsibilities of e-commerce platforms and merchants clearer, and the rights and interests of consumers can be protected to the greatest extent." Cui Lili analyzed.
Mo Daiqing, an e-commerce analyst at the Network Economic Society, said, "Online consumption has become increasingly standardized in the process of development over the years. Live e-commerce has experienced a process of barbaric growth to policy tightening. Nowadays, strict policy supervision has also standardized live e-commerce. After the rapid growth period of live e-commerce, the resources of anchors and upstream and downstream of the industrial chain need to be further integrated, and it is necessary to have relatively unified standards and coordinate the division of labor and connection between industrial roles, so as to standardize the industry and improve the overall efficiency and quality. ”
Red Star Capital Bureau noted that in this draft opinion, there are 3 opinions in response to the "seven-day no reason to return", including "no applicable seven days without reason to return without consumer confirmation", "four excluded goods to make a no-reason return commitment", "on the grounds that the goods have been unsealed as a reason to return", the people's courts have made favorable interpretations to consumers.
In particular, according to the Draft for Comments, if an e-commerce operator makes an unwarranted return commitment to the four excluded goods stipulated by law, and the consumer claims to return the goods, the court will support it.
Cui Lili said that this means that even if it is a fresh and perishable product, as long as the merchant promises to return it without reason, it should be returned. "Generally speaking, the legal provisions are relatively basic, and the practice of enterprises should be higher than the legal provisions."
In addition, with regard to the increasingly active second-hand market, Article 9 of the Draft Opinions also explains that "where consumers are harmed by purchasing second-hand commodities on the second-hand commodity online trading platform, and the people's court comprehensively considers the nature, source, quantity, price, frequency, whether there are other sales channels and income of the goods sold by the seller, etc., and can determine that the seller is engaged in commercial business activities through the sale of second-hand commodities, and the consumer claims that the seller of the goods bears the responsibility of the operator in accordance with the Consumer Rights and Interests Protection Law, the people's court shall support it." ”
Cui Lili said that the regulations distinguish between those who specialize in second-hand business and those who resell for their own use, while the regulations should be applicable to merchants.
Live streaming with after-sales:
The consumer claimed that the operator was liable, and the court upheld it
This year's double eleven, paris L'Oréal bottle mask price difference problem continues to ferment, Li Jiaqi, Wei Ya two anchors and the brand side issued a statement many times. Consumers questioned L'Oréal Paris's false publicity at the same time, but also troubled, "Live room after-sales products, who should I find?" ”
Red Star Capital Bureau noted that the draft gives two plans, which are rare in the past. Simply put, consumers have been harmed by clicking on the purchase of goods in the online live broadcast room, and the consumer claims that the operator of the live broadcast room bears the responsibility of the seller of the goods, while the operator of the live broadcast room says that he is only an advertising endorsement, not a real seller. The first option is that when the operator of the live broadcast room provides evidence to prove that he is not a seller, the court should make a comprehensive judgment on various factors; the second is that the court directly supports the consumer.
Two schemes of liability for live broadcast operators, screenshot of the official website of the Supreme People's Court
In this regard, Cui Lili said, "What plan to adopt, the key depends on whether the live broadcast operator can produce evidence." If evidence can be adduced, it is more suitable for the first option, while the second is more suitable for the form of advertising. ”
Cui Lili believes that the two schemes are not an absolute binary or one-choice relationship, and may exist at the same time, "The characteristics and attributes of the live broadcast room are also different, some live broadcast rooms are selling goods, and some are more focused on publicity and planting grass." ”
Zheng Meiling, a lawyer at Beijing Jingshi Law Firm who focuses on contract disputes, told Red Star Capital Bureau that she is more inclined to plan two, "The second plan for the responsibility of the operator of the live broadcast room will further improve the obligation of the live broadcast room to review the goods it sells." ”
In addition, the draft opinion clarifies the responsibilities of live marketing platforms, and makes corresponding requirements for the review obligations and joint and several liabilities of platforms.
Red Star Capital Bureau has learned that there are generally two cooperation models between anchors and live broadcast platforms in the industry, one is that the anchor directly signs a contract with the platform, which is a direct cooperation relationship; the other is that the brokerage company and the platform sign a cooperation agreement, which is an indirect service relationship.
For example, Cui Lili said that the platform (the operator of the online live broadcast marketing platform) is more like a department store, providing consumers with shopping channels, while the anchor (the operator of the live broadcast room) is similar to the sales in the mall. Therefore, when the rights and interests of consumers are harmed, it is reasonable for the live broadcasting platform and the anchor to bear joint and several liability.
In terms of false publicity and false original price preferential price, the opinion draft also made a more favorable interpretation for consumers. Red Star Capital Bureau noted that at present, many e-commerce platforms have a certain amount of price insurance behavior before large shopping festivals, so what is the difference between this and the opinion draft?
Zheng Meiling said that the content of the opinion draft means that when consumers are defrauded and claim responsibility from platform operators, "they do not have to be limited to the current 15-day period of insuring the price of some large shopping festivals." In the case of a longer price than the pairing cycle, it is more effective to avoid merchants from fictitious prices and false discounts when promoting similar activities. ”
Takeaway Dining:
Foundries are also responsible for the main responsibility
It is worth noting that in addition to online shopping, this opinion draft also specifically mentions the safety of takeaway catering.
The Draft Opinions use three provisions to clarify the rules for takeaway catering, first of all, to emphasize the review obligation of takeaway catering platforms, and secondly, to explain the packaging materials of takeaway tableware to support consumer claims.
Zheng Meiling believes that "takeaway platforms should strictly review the requirements for online access, and conduct real-name registration and review licenses for online catering service providers." Through the clarification of the responsibility mechanism of joint and several liability, the strict review of merchants by the platform is strengthened, and it is also convenient for consumers to protect their rights. ”
In addition, in recent years, the news of takeaway catering using cooking bags or asking people to process it is not uncommon, how to ensure the safety of related food and clarify the responsibilities of all parties?
The Red Star Capital Bureau noted that Article 22 of the Draft Opinions shows that "if a catering service provider entering the network defends on the grounds that the order is entrusted to others to process and produce, the people's court will not support it." ”
In this regard, Cui Lili said that the terminal merchant needs to bear full responsibility, which is the main responsibility of the clear service provider, "even if the merchant uses the cooking package, in the actual scenario, it is also tacit that the merchant is responsible for the food safety of the cooking package, and cannot be entrusted to others as an application to shirk its responsibility." ”
Red Star News reporter Yu Yao Xie Yutong
Edited by Yang Cheng
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