Regulation of the activities of electronic platforms under the Law of the People's Republic of China "On Electronic Commerce"
In 2019, the Law "On Electronic Commerce" came into force in China. This regulatory legal act contains provisions concerning various aspects of the activities of electronic trading platforms and the conclusion of contracts with their help. Taking into account the fact that China is one of the leaders in the field of electronic commerce, this article examines the norms of this law governing the activities of operators of e-commerce platforms (aggregators). It has been revealed that in China, the platform operator has responsibilities related to comprehensive consumer information about the product (service) that is implemented on the platform, including through the creation of a system that allows displaying consumer reviews. In order to facilitate state control over the sphere of trade, platform operators also keep records of information about goods, services and transactions. Through the use of the comparative legal method, it is concluded that the experience of the PRC can be used to improve Russian legislation.
Keywords: e-commerce, digitalization, aggregator, consumer, China, digital economy.
The processes of digitalization of the economy are taking place at a fairly high pace and cause significant changes in the implementation of economic activities. Digital technologies have a tremendous impact on economic processes in society. The conclusion of transactions is moving from the traditional paper version to the Internet, the parties now exchange emails or resort to the use of special programs. At the same time, sellers (service providers) often interact with customers through special trading platforms - aggregators <1>, which unite many business entities, for example Amazon, Alibaba, Uber, Booking, etc. In this regard, Russian researchers note that "one of the most interesting and ambiguous aspects of e-commerce is the question of the legal status and features of the activities of so-called e-commerce aggregators - subjects of civil turnover who own, operate, and manage specialized electronic services/platforms" <2>. Indeed, the status of such e-commerce participants in Russia is largely unresolved.
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<1> Kasymov R.S. Control of monopolization in the digital economy // Competition law. 2019. N 4. pp. 27-30.
<2> E-commerce and interrelated areas (legal regulation): Collection of articles / A.A. Bogustov, O.N. Gorokhova, D.A. Dorotenko, etc.; Author's hand. Col. and ed. M.A. Rozhkov. M.: Statute, 2019.
All of the above has served to raise the issue of legal regulation of relations in the field of the digital economy at the highest level. As a result, the Decree of the President of the Russian Federation "On the Strategy for the development of the Information Society in the Russian Federation for 2017-2030" <3> appeared. However, Russia still lacks a regulatory legal act regulating relations in the field of e-commerce. For this reason, the Russian legislator should study foreign experience in this area, in particular Chinese.
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<3> Decree of the President of the Russian Federation No. 203 dated May 9, 2017 "On the Strategy for the development of the Information Society in the Russian Federation for 2017-2030".
Today, the People's Republic of China is one of the world leaders in the development of e-commerce. As the Chinese authors write, "e-commerce is rapidly beginning to interact with the manufacturing industry, contributes to the transformation and modernization of the service industry, and gives rise to new forms of business" <4>. Thus, the UN Conference on Trade and Development notes that China plays a leading role in the digital economy. More than 1 billion users have such a Chinese electronic resource as WeChat, it is used as a telecommunications platform and as a platform for promoting goods and services, ordering them, which is facilitated by the integrated payment system <5>. According to experts, in 2019, the volume of China's digital economy reached 31 trillion yuan <6>, and by 2023 it will amount to about 51.3% of GDP <7>.
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<4> Cui Fengchao. Development and change of e-commerce in China // Scientific Journal. 2018. N 5(28).
<5> Report on the digital economy, 2019.
<6> The volume of China's digital economy has reached 31 trillion yuan.
<7> The digital economy will account for more than half of China's GDP by 2023 - IDC.
In many ways, this was the reason for the adoption of the Law of the People's Republic of China "On Electronic Commerce" <8>. This regulatory legal act has settled many issues related to the use of various electronic platforms designed to conclude transactions for the purchase and sale of goods and services. Although China is one of the leaders in the field of e-commerce development, its experience in legal regulation of this area has not been sufficiently studied in Russian jurisprudence. Some aspects of this problem were briefly considered in the works of a number of authors <9>. In this regard, the purpose of this study is to study the functioning of e-commerce platforms in China.
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<8> N 7 (Law of the People's Republic of China dated August 31, 2018 "On Electronic Commerce").
<9> Troshchinsky P.V. Evolution of the legal system of the People's Republic of China (1949-2018): historical and legal aspect (with a list of current laws of the People's Republic of China). Moscow: Publishing House of the National Academy of Sciences, 2018. 184 p.; Zhilkibaev S.N. Legal regulation of electronic commerce: a Chinese view // Transformation of law in the Information Society: Materials of the I All-Russian Scientific and Practical Forum of Young Scientists and Students / Ed. by O.A. Puchkov. Yekaterinburg: Ural State Law University, 2019. pp. 145 - 151.
The Law of the People's Republic of China "On E-Commerce" in Article 9 defines the operator of an e-commerce platform as an organization that provides two or more parties in the field of e-commerce with the opportunity to trade services, operate online stores, search for sellers and buyers, disclose information so that they can independently conduct trading activities. In Russia, this concept is revealed through the definition of the owner of the aggregator of information about goods (services), enshrined in the Law of the Russian Federation "On Consumer Rights Protection" <10>, the essence of which is that such an organization provides information about goods (services) and sellers (performers), ensures the conclusion of an agreement between the consumer and the seller (by the contractor), and also provides the opportunity to make payments.
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<10> The Law of the Russian Federation of February 7, 1992 N 2300-1 "On Consumer Rights protection" (ed. dated 07/18/2019).
According to the researchers, the definition enshrined in the Law of the Russian Federation "On Consumer Protection" allows us to say that the aggregator (platform operator) is an information support service provider <11>, since it provides the consumer with the opportunity to familiarize themselves with the characteristics of a product or service that does not belong to the owner of the aggregator <12>. However, not everyone agrees with their role, pointing out that aggregator companies are the organizers of civil turnover <13>. An analysis of the Law of the People's Republic of China "On Electronic Commerce" shows that China adheres to this approach.
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<11> Deryugina T.V. The legal nature of the contract mediating the emergence of legal relations with the participation of the aggregator // Civil law. 2018. N 6. pp. 3-6.
Suvorov E.D. Some problems of electronic commerce: on the issue of the responsibility of aggregator owners to consumers // Bulletin of Economic Justice of the Russian Federation. 2019. N 9. pp. 57-67.
<13> Molotnikov A.E., Arkhipov E.V. Social networks and aggregator companies: legal aspects of activity // Entrepreneurial law. 2017. N 4. pp. 38-47.
As the Chinese authors correctly point out, platform operators should actively manage intra-platform transactions <14>. Thus, according to Article 27 of the Law of the People's Republic of China "On Electronic Commerce", the operator of the e-commerce platform must request the company applying for the sale of goods or services on the platform to provide reliable information about it, address, contact information and license, and verify. In Russia, for comparison, according to paragraphs 1.2 and 1.3 of art. 9 of the Law of the Russian Federation "On Consumer Protection", the seller (contractor) is obliged to provide such information to the owner of the aggregator. However, the Chinese legislator did not stop there on the issue of managing intra-platform processes. Article 28 of the Law of the People's Republic of China "On Electronic Commerce", in addition to the above, stipulates the operator's obligation to provide information related to the payment of taxes by companies operating on the platform to the tax authorities. Despite the ambiguity of this measure, the Russian legislator should pay attention to this approach in order to study the expediency of its use.
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<14> Cui Cuntsong. On the regulation of the object and scope of the Law "On Electronic Commerce" // Journal of Suzhou University (series: Philosophical and Social Sciences). 2019. N 1. P. 84.
In addition, according to Article 31, the operator of the e-commerce platform must register and store information about goods and services, transactions carried out on the platform, and ensure the integrity, confidentiality and accessibility of information. The consolidation of such requirements in the law can be supported, because the role of the platform operator is not limited only to informing, since it "has the technical capabilities to moderate the composition of goods offered to consumers" <15>.
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<15> Suvorov E.D. Some problems of electronic commerce: on the issue of the responsibility of aggregator owners to consumers // Bulletin of Economic Justice of the Russian Federation. 2019. N 9.
As for the information function of the platform operator, the PRC also has features regarding the amount of mandatory information and the way it is provided. Thus, according to Article 40 of the Law of the People's Republic of China "On Electronic Commerce", the platform operator is obliged to show consumers the search results for goods or services in various ways based on price, sales, rating of goods or services, and explicitly indicate advertising of goods or services ranked as a result of payment for placement. In the Law of the Russian Federation "On Consumer Protection", you can also see the norms for informing consumers. However, the way this is enshrined in Chinese law allows the consumer to create a more complete picture of the product (service) that is offered.
The problem of legal legalization of social regulators of property and personal non-property turnover, based, for example, on consumer assessment, is also an urgent issue in the light of the functioning of aggregators. It is obvious that feedback from Internet users about a particular product or business entity can be of great importance when concluding a transaction. Quite often, the participants in the turnover devote a lot of effort to collect such information and, based on it, make a certain choice. There is a fair opinion in the Russian literature that it is necessary to "oblige the aggregator to form a rating of sellers, performers and contractors" <16>.
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<16> Deryugina T.V. Decree. op. c. 5.
In Article 39 of the analyzed Law of the People's Republic of China, the above-mentioned idea is implemented. In particular, it is stipulated that the operator of the e-commerce platform should create a system for evaluating persons engaged in entrepreneurial activities using the platform, publish rules for evaluating such persons and provide consumers with the opportunity to comment on goods sold or services provided through the platform. The operator of the e-commerce platform cannot delete any comments made by the consumer in relation to goods or services sold or provided on its platform. The purpose of this rule is to ensure that the platform cannot delete bad reviews at its discretion, and thus protects consumers' right to know and choose. As the researchers correctly point out, such a strict ban leads to the fact that the participants of the platform will not be able to demand the removal of false negative reviews <17>. However, this does not mean that they are deprived of protection, because when it comes, for example, to an act of unfair competition, the participants of the platform can use the measures provided for by antimonopoly legislation.
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<17> Ding Daoqin. Reflection on the issue of regulating the distribution of responsibility of the platform under the Law "On Electronic Commerce" // Journal of the Beijing University of Aeronautics and Astronautics (series: Social Sciences). 2018. N 11. P. 4.
The Chinese legislator also assigned the operator of the e-commerce platform the responsibility to ensure the safety of the platform's operation. Thus, according to Article 30 of the Law of the People's Republic of China "On Electronic Commerce", the operator must take measures to ensure cybersecurity and stable operation of the platform, prevent illegal and criminal activities on the Internet, effectively counter cybersecurity violations and ensure the security of electronic commerce. The operator of the e-commerce platform must make a plan in case of unforeseen cybersecurity circumstances. Given the fact that the platform operator actually acts as the organizer of the exchange of goods between sellers and buyers, assigning him the responsibility to maintain the security of the trading platform seems right, as it will contribute to the security of transactions and transactions carried out through the platform.
An analysis of the provisions of the Law of the People's Republic of China "On Electronic Commerce" concerning the duties of the operator of the e-commerce platform showed that in China aggregators are treated not as information resources, but as persons ensuring the functioning of the market. In this regard, they are subject to requirements aimed at ensuring the rights and interests of the parties between whom transactions are concluded. Based on the Chinese experience, it is possible to propose to the domestic legislator a number of measures that, it seems, will contribute to consumer protection.
First, it is necessary to pay attention to how the legal regulation of the procedure for posting reviews on the resources of platform operators is carried out in China. In order to create a realistic picture of the resources on which reviews are posted, it is necessary to oblige not only not to delete them, but also to carry out full identification of users in order to take into account only reviews from real buyers.
Secondly, the operator of the electronic platform (the owner of the aggregator) should be charged with ensuring cybersecurity of the use of the platform.
Thirdly, sellers (service providers) should be obliged to provide information to the aggregator operator about goods and services, which the latter will be obliged to store and transfer to the competent authorities in case of disputes, including those related to the quality of goods (services). In addition, the owner of the aggregator should be charged with the obligation to take active actions to determine whether the information received from the seller (contractor) is valid.
Fourth, in order to fully protect the rights of consumers, it is possible to oblige the owners of aggregators to show consumers the results of searching for goods or services according to various criteria based on price, sales, rating, etc.
The proposed measures should be taken into account not only as amendments to the Law of the Russian Federation "On Consumer Protection", but also when developing a draft law on electronic commerce. It is now considered that purchases of standard goods for small amounts are carried out through aggregators <18>. However, it is possible that in the near future this method of trade turnover will become common for the parties to supply contracts.
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<18> Andreeva L.V. Legal problems of trade development in the context of digital transformation // Entrepreneurial law. 2019. N 3. pp. 36-43.
