Award-winning thesis, "On the Legal Regulation of Micro-business"-won the second prize of Shandong Lawyers' Excellent Thesis Comprehensive Group.

Content Summary

As a kind of e-commerce, WeChat is unique in the wave of Internet economy because of its wide coverage and huge user base. At the same time, its large number of individual-to-individual (Customer to Customer, referred to as C2C) virtual transaction model also makes the traditional civil and commercial law and economic law in the adjustment of this new e-commerce model. Although the promulgation of the E-Commerce Law helps to make up for the deficiency that the existing laws cannot completely adjust the micro-commerce, the law does not respond positively to the new theoretical and practical problems caused by new e-commerce such as micro-commerce. Therefore, it is difficult to cover all the legal relationships in the operation of micro-commerce only by this legal adjustment, therefore, it is necessary to put the new law and the old law, this law and the other law under the common vision of micro-business, sort out its internal logical relationship, the micro-business type analysis so as to explore the different legal regulation paths of different types of micro-business business models under the umbrella of the Electronic Commerce Law.

Key words:

Micro-business e-commerce law, consumer rights protection, tax legal regulation.

China has the largest number of mobile network users in the world, and in 2018 it surpassed the United States to become the country with the largest number of smartphone users in the world. The combination of mobile Internet and smart phones has stimulated new economic development vitality, and also gave birth to a new economic development model, which also puts forward new requirements for social governance. In the environment of the "Internet", various activities in the virtual world have sprung up like bamboo shoots after a spring rain, but the evolution of the matching social governance methods is dwarfed by that. in particular, the absence of the legal system has greatly increased the uncertainty of the development of the Internet economy and e-commerce. Specific to micro-business, near-vacuum consumer rights protection and tax collection supervision is particularly prominent. To regulate a new social phenomenon by law, it is necessary to abstract its inherent rights and obligations, so it is the logical basis of legal regulation to see through the operation mode of different types of micro-business from the perspective of law. The second chapter of the newly promulgated "Electronic Commerce Law" clearly stipulates the concept of e-commerce operators, and [1] WeChat business is clearly included in the scope of the law. Since the "E-commerce Law" is not formulated for micro-business alone, its relationship with other laws also needs to be further explored.

Categories and Legal Risks of 1. Microbusiness

(I) purchasing class. This kind of micro-business operation mode is to purchase at home and abroad, and the micro-business operators sell the target goods to consumers at a price lower than that of the counter.

There is no lack of such micro-merchants from overseas luxury purchasing operators, such overseas purchasing often a single transaction price is not cheap, buyers and buyers usually have a relatively stable online interpersonal trust relationship as a credit guarantee for the transaction. The lack of market supervision and the high cost of safeguarding rights in the later period lead to the fact that purchasing agents can only use common friends as the connection point to establish trust relationship with new buyers, that is, "scenario presupposition based on gradual acquaintance society". Although this kind of pre-fully deconstructs one of the core characteristics of purchasing-on-behalf micro-business, it does not completely come to the conclusion that "micro-business is a portrait presupposition of the transformation from economic rational personality to social rational personality". [2] With the sudden emergence of the "Internet Red Economy", some purchasing agents accumulate a large number of fans in a short period of time by publishing videos such as beauty experience through platforms such as microblogs, and then transfer to WeChat platform to purchase goods for fans, breaking through the new mode of business expansion with interpersonal relationship as credit guarantee. The buyer's own independence on the Internet is often selected through the popularity of the buyer and the public evaluation of the buyer by other buyers. In most cases, the buyer and the buyer, the buyer and the other buyers do not know each other. Buyers will choose the purchasing agent after measuring the price of the target commodity, authenticity and other factors, so this mode of operation is not a one-way conversion from economic rationality to social rationality but a two-way interaction between the two. Therefore, the threat of purchasing micro-merchants to the rights and interests of buyers needs to find a more powerful regulatory approach than personal trust with the breakthrough of acquaintances. Since most of the purchasing micro-businesses are C2C models, whether the purchasing agent belongs to the operator defined in the Consumer Rights Protection Law is the first ink to draw a new regulatory approach. In practice, most industrial and commercial administrative departments and consumer rights protection units hold a negative attitude towards this. They believe that "micro-business belongs to private transactions and is difficult to be included in the adjustment scope of the consumer law". [3] These departments and units do not make a typological distinction for the determination of the legal status of micro-business in the consumer law, but only in accordance with the principle of regulatory consistency for the overall evaluation, this paper believes that this view is biased.

On the other hand, a large number of overseas purchasing agents are carried out in the name of the purchasing agents, and there are few tax payers. In 2013, the resigned stewardess Li Moumou failed to declare for repeatedly bringing cosmetics purchased from South Korea into the country. He evaded more than 1.13 million yuan in taxes and was sentenced to 3 years in prison with a fine of 40000 yuan. In 2014, the court of second instance upheld this judgment. Called "the first case of Haitao". Although the e-commerce platform involved in this case is different from the micro-business, the risks in tax law and criminal law are the same in terms of the same business means of overseas purchasing. At the beginning of October this year, there was news on the Internet that more than 100 purchasing agents of a flight at Pudong Airport were investigated and dealt with by the customs and queued up to pay customs duties. [4] The public law risks of purchasing micro-merchants are evident from this, and this kind of surprise tax enforcement is not conducive to the healthy development of the market.

(II) individual classes. This kind of micro-business is similar to individual industrial and commercial households, some operators have trade names or trademarks. Individual micro-business generally has a certain skill or skill, by selling handmade products or providing processing services for others and other forms of profit.

This kind of micro-business usually operates not only on WeChat, an e-commerce platform, but also on Taobao or other e-commerce platforms. In most cases, it also owns physical shops. This type of micro-business has a wide range of common points with traditional e-commerce and even offline operators, and the legal relationship is relatively clear. Through the current legal system, such micro-businesses can basically be well regulated.

(III) store class. This kind of micro-business belongs to a certain enterprise or other economic organization, has its own brand, team, internal structure level, and even has its own registered trademark and patent. Store-type micro-business is a business-to-individual (Business to Consumer, B2C for short) business model derived from purchasing-type micro-business and individual micro-business.

Store class micro-business itself is the seller, or even the producer. The business relationship of this type of micro-business is complex, the main body of legal relationship is numerous, and the relationship between private law and public law is intertwined. How to bring the production and operation of this virtual store into the legal framework of the system, and how to make the store-type micro-business integrate well into the existing market competition mechanism are all urgent problems to respond. Because this kind of micro-business is operated in B2C mode, it has the commonness of the legal relationship between the general operators and consumers in the field of consumer law and the flexible and hidden personality of micro-business, which is not easy to supervise. The asymmetry of information resources and the inequality of economic factors between merchants and individuals are magnified by the social and virtual nature of WeChat platform, which makes the trading counterpart more vulnerable in comparison with the economic volume of micro-merchants. Therefore, it is necessary to bring the operation of store-type micro-merchants into the adjustment scope of the elimination law. Since this kind of micro-business has formed a hierarchical organizational relationship in the operation process, or B2C2C mode, the definition of the three-party or even multi-party legal relationship formed under this mode should be discussed emphatically. Otherwise, the lack of judgment of legal relationship will break the basic chain of claim right of transaction, and the ultimate ownership of rights and obligations cannot be clarified after disputes occur, which may lead to the injustice of liability and the failure of right relief.

In the whole process of economic activities, there may be a competition of identities in the store category. In other words, it is both a producer and a seller. Production and sales of products covering a wide range, many of which are involved in food, health care products industry. In this field, a relatively complete industrial foundation has been formed, but the supporting regulatory system is still blank. The social nature of WeChat platform makes it difficult for public power to take the initiative to effectively supervise and review the business activities of micro-businesses. The government's administrative power is blocked outside the wall of personal privacy and information protection. What legal facts should be used as a channel to open a window for public power to review micro-business activities, and how to delimit the boundary of the depth and breadth of supervision of micro-business activities in this window, it is a problem that needs to be solved in the context of market supervision of store-type micro-businesses.

Like purchasing micro-merchants, a large number of store micro-merchants that have not been registered in industrial and commercial registration are also in a vacuum in terms of tax supervision. In 2016, the market transaction scale of China's micro-business industry was 328.77 billion billion yuan, and this figure is expected to expand to 1 trillion by 2019. This can best reflect the value of the industry, the most in line with the requirements of emerging markets is the store type of micro-business, such micro-business and traditional market entities in essence is no different, the store type of micro-business tax according to law is the state to support and develop the "Internet" economy should be the meaning, but also the store type of micro-business operators should perform the legal obligations.

There are a large number of purchasing agents and stores in China. According to the data released by Weigu China, the number of micro-business practitioners has reached 30 million. However, due to the lack of a unified regulatory path, the development of all kinds of micro-business is uneven, and some even engage in layers of agency money and slide into the abyss of pyramid selling. Although the relevant departments of the State Council, China Electronic Chamber of Commerce and other units have issued some documents to open the process of exploring the standardized operation of wechat business, they have not effectively played an expected role in the healthy development of the whole industry.

Analysis of the Legal Regulation of Various Micro-business Operations under the Implementation of the 2. Electronic Commerce Law

Private (I) law relationship is the core of micro-business relationship and the starting point of legal regulation.

Although micro-business has many new features that traditional trading does not have, its essential legal attribute is still the contract of sale and purchase. The civil legal relationship based on the contract of sale is the logical starting point of all legal relations under the concept of micro-business, and other public law relations other than taxation are basically accompanied by or around the private law relationship between the buyer and the seller. As far as purchasing micro-merchants and individual micro-merchants are concerned, if a civil contract can be established, effective and fully implemented, it will not stimulate the intervention of public law systems such as consumer rights protection laws under this specific transaction. For store micro-merchants, no matter whether the law carries out other macro-control such as market access, anti-improper competition, anti-monopoly and so on, the means of its operation is still to conclude and perform a contract of sale with the buyer. Therefore, private law with meaning autonomy as the core plays a fundamental role in adjusting the relationship between micro-business operations.

By deconstructing the mode of operation of micro-merchants, it can be found that the buyers of micro-merchants often have a relatively clear target product before choosing the purchasing agent, and then enter into a contract with the purchasing agent through WeChat dialogue. With regard to the nature of this contract, since the buyer is only buying goods on behalf of the buyer in the meaning of the word, is the extension of the buyer's arm, and does not hoard the goods itself, it often does not actually acquire the ownership of the goods when concluding the contract with the buyer, which makes the contract signed by the buyer have the appearance of a paid entrustment contract. However, in fact, the commodities displayed by purchasing agents in the circle of friends are definite, and their circle of friends has the function of virtual commodity shelf, and the expressions of sales contract are usually used by purchasing agents and purchasers when concluding contracts, such as negotiation price, quantity of commodities, harvest method, place, etc. The purchasers have not explicitly authorized the purchasing agents. Moreover, the identification of such a contract as a contract of sale does not affect the conduct of the transaction. Although the purchaser does not acquire ownership of the goods at the time of the conclusion of the contract with the purchaser, the rights and obligations of the contract are not directed at the specified goods, but at any one or more of these types of goods, which is similar to ordering goods from offline sellers. If there is no special agreement in the contract, as long as the general elements of the validity of the contract are met, the contract can be successfully judged by the validity of the contract at the time of its establishment. What's more, according to the provisions of China's contract law, if there are no special provisions under the contract of paid entrustment, reference can be made to the relevant provisions of the contract of sale. [5] "Based on qualitative considerations in similarity judgments",[6] the two types of contracts are highly interoperable in the application of the law to the purchasing class of micro-merchants. This contract is generally recognized as a contract of sale and purchase for the right relief path after the dispute is convenient, unless the parties to the contract clearly express the authorization of entrustment at the time of the conclusion of the contract, otherwise the legal relationship of micro-business should be excluded from the retrieval of the entrustment contract.

The special provisions on contracts in the upcoming e-commerce law have changed the general provisions of the contract law on sales contracts. For example, Article 20 stipulates that if the buyer does not designate a logistics service provider, the e-commerce operator shall bear the risks and responsibilities in the transportation, which changes the previous rule that the first carrier in this kind of transaction transfers the risks to the buyer. For example, Article 48, paragraph 2 stipulates that the civil subject who concludes the contract on the e-commerce platform is presumed to enjoy the corresponding civil capacity, the requirement of the subject's capacity for civil conduct at the time of the establishment of the contract is legally preset, which does not require the parties to test in advance and changes the logical order of the conclusion of the contract. Although the sales contract in the micro-business operation does not have a standardized term structure, but through the WeChat dialogue form to agree on the rights and obligations of both parties. However, the first source of power in the relationship of private law should be the legal lock set between the parties in accordance with the principle of autonomy of the will, I .e. the contract. Therefore, if the provisions of the E-commerce Law on sales contracts do not clearly affect the validity of the contract, both parties to the contract can exclude the application. Chapter III of the Law specifically uses five clauses to stipulate the conclusion and performance of e-commerce contracts. [7] From the perspective of legal analysis, two of the clauses directly related to the content of the contract have the proviso that the parties agree to exclude the application of this provision. In practice, most of the micro-business, especially the purchasing and individual micro-business in the process of business disputes caused by the dispute is not to the point of using the express provisions of the law to correct the terms of the contract. In general, the parties to the contract will negotiate the part of the contract that is not agreed upon, or enter into a new contract, which reflects that the basic legal relationship of micro-business is a civil legal relationship or a private law relationship.

Under the business model of store-type micro-business, the legal relationship structure with private law as the core also helps to clarify the complex subject relationship context, so that the operators under multiple identities return to the legal rational evaluation, and make the marginal legal relationship as the center. In practice, stores have differentiated into different forms of agency business models. The first is the traditional civil law agent, that is, such an agent has the authorization of the agent, the agent operates independently within the scope of the agent's authorization, has independent bargaining rights, the rights and obligations of the contract of sale are attributed to the agent, the agent according to the single commission profit. The second form is more complicated, which adopts the form of layered agency, that is, the subject of final delivery of goods and collection of payment is different from the subject authorized to the agent for external operation, but the micro-business operator who signs the contract with the buyer directly assumes the rights and obligations of the sales contract, and the rights and obligations of the contract are transmitted to the micro-business operator who finally produces the product through other contracts within the operator, this kind of hierarchical operators are similar to the dealers of offline commercial activities, but the difference is that some micro-business operators do not hoard goods, nor can they afford the disputes caused by product quality problems. The contract between them and the upper-level micro-business operators regarding the distribution of internal rights and obligations is even more unknown to the buyer. Therefore, the choice of which mode of operation of the store class micro-business will directly affect the buyer's claim to the realization of the basis.

No matter what the platform is, the micro-business operation cannot be separated from the essential attribute of private law relationship. Therefore, the regulation of private law is the first step of the regulation of micro-business law, and the civil legal relationship is accompanied by the beginning and end of a transaction. At first, the conclusion of the sales contract takes effect through the validity evaluation, and the parties begin to be locked by the force of private law. Then they consciously and effectively perform and complete the transaction, or seek the relief of rights in disputes. All of these are to establish the bridge of private law through the contract between different subjects, to transfer and transfer the rights and obligations in the process of transaction, and different subjects share the benefits and obligations in their own links, ultimately, the entire bundle of legal relations surrounding the contract of sale is extinguished or stabilized. Accordingly, when regulating the private law of micro-business, the first thing that should be retrieved is the contract concluded between the two parties, and if the purpose cannot be achieved, it will be dealt with in the order of articles 61 and 62 of the Contract Law.

The breakthrough of (II) micro-business operation to the acquaintance circle is the reason for the introduction of public law regulation.

In the original micro-business model, that is, C2C model, individual and individual transactions in the same economic order, the parties to the contract of sale and purchase do not have enough power in private law to easily set up a legal lock that can only bind the other party. However, the expansion of the scale of micro-business operations has broken this balance, especially the emergence of store-type micro-business and its hierarchical operation model have made the buyer's position in the transaction process vulnerable. As the core of the civil law adjustment at this time obviously stretched, it is necessary to introduce public law relations to start the micro-business management in the context of power regulation. The general provisions of the General Provisions of the Electronic Commerce Law on e-commerce operators are of course applicable to all types of micro-business. According to the law, in addition to some individual micro-merchants, almost all purchasing agents and store micro-merchants are required to register as market entities and incorporate them into the market supervision system.

Article 11 of the Electronic Commerce Law stipulates the legal tax obligations of micro-business operators. This paper argues that this provision is not an increase in the burden on business entities, but an emphasis and restatement of their tax obligations. When the business entity breaks through the closed and part-time nature of acquaintance social transactions to expand to market-oriented and professional business methods, it inevitably enters the world of public law and activates the switch of the tax system. Only because of the particularity of WeChat, the arm of the tax authorities can not pull off the cloak of the social platform to directly levy taxes on the majority of micro-business operators. Therefore, Articles 27 to 46 of the new law focus on the provisions on e-commerce platform operators, making e-commerce platform operators become the connection point for public authorities to extend the length of law enforcement to decentralized platform operators.

References

[1] Article 9 of the Electronic Commerce Act

[2] Dong Biao and Li Renyu: "Logical Basis and System Design of Micro-business Regulation in the" Internet "Era", Law Journal, No. 6, 2016

[3] Duan Qihua: "The Legal Governance of" WeChat Business "and Platform Corporate Responsibility", "People's Political Consultative Conference" July 25, 2016

[4] http://www.sohu.com/a/257978322_168600最后访问时间:2018年10月27日

[5] Article 174 of the Contract Law.

[6] Yi Jun: "The provisions of the contract of sale shall be applied to other paid contracts", Law Research, No. 20161, 2016.

[7] Articles 47 to 51 of the Electronic Commerce Act