E-Commerce In China and Germany
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1 E-Commerce In China and Germany A Sino-German Comparative Analysis Board of Editors Rainer Metz Hans-W. Micklitz Gerald Spindlier Yang Hongfeng Wang Lei Wu Dongping Coordinating Editor: Kai Purnhagen Editor of the Series: Jorg Binding CJ
2 I. Introduction 1 A. Common Challenges for Consumer Protection in E-Commerce 2 B. Approaches to Consumer Protection in E-Commerce 3 C. Research Objectives and Questions of the Study 3 D. Research Methodology and Structure of the Study 4 E. Methodological Limitations 4 II. Facts and Structures - The E-Commerce System 6 A. Evolution of the E-Commerce Market and Problems Facing Consumers 6 1. China 6 a. Initial Period ( ) 9 b. Adjustment Period ( ) 9 c. Recovery Period ( ) 9 d. Rapid Development Period ( ) 9 e. Current Situation of the Development of Online Commodity Trading in China 9 (1) Contribution of Online Commodity Trading to the Chinese Economy.. 9 (2) Size of the Online Commodity Trading Market 10 (3) UserScale 11 (4) Scale of Transactions 11 (5) Methods of Payment 11 (6) New Patterns of Online Shopping 11 (7) Problems in Protecting Consumers' Rights and Interests 12 (8) Issues in the Process of Online Trading 14 (9) Fair Trade Issues 15 (10)Payment Risks 16 (11 )Post-Trading Issues EU/Germany 18 a. Status of E-Commerce 18 b. Consumer Benefits of E-Commerce 23 c. Problems Facing Consumers 24 (1) Defining Different Types of Risks 25 (2) Distance Trade: Separation of Payment and Delivery 27 (3) Third-Party Risks 28 B. Laws and Regulations China 29 a. Overview of the Legal System and Structure in China 29 b. Division of Legal Powers within the Chinese Legal System 29 c. The Legal System for E-Commerce 30 (1) China's Legal System for E-Commerce in Retrospect 30 (a) Speed up the establishment of the credit system 32 (b) Gradually Implement the Real Name Registration System 32 (c) Decrease Administrative Pressure and Rely More on Civil Business Negotiation Systems to Resolve Disputes 33 (d) Effective Management of Technical Measures 33 (e) Establish a Dynamic Legal Environment 34 (f) Establish a Reasonable Accountability System Aimed at Adjusting the Industry Chain 35 (2) Current Situation of China's Legal System on E-Commerce 39 (a) Content of Relevant Laws and Regulations 44 I Relevant Legal Documents Formulated by the State Council 44 XI
3 II Relevant Documents Formulated by the State Administration for Industry and Commerce 44 (b) Problems with Relevant Laws and Regulations EU/Germany 45 a. EU 46 (1) General Legal Principles and Rights of Trade 46 (a) Highly Competitive Social Market Economy 47 (b) Consumer Protection 48 (c) Freedom of Contract 50 (d) Freedom of Information 50 (e) Social Justice and Basic Rights 51 (f) Privacy and Data Protection 52 (2) Substantial Regulations 52 (a) The Applicable Statutes 52 (b) Exempted Contracts 53 b. Germany 54 (1) General Legal Principles and Rights of Trade 54 (a) Social State Principle 54 (b) Autonomy and Social State Responsibility 54 (c) Privacy 55 (2) Substantial Regulations 55 c. Regulation of Payments 56 (1) Payment Services Directive (PSD) 56 (2) E-Money Directive 59 (3) Evolving European Supervisory Framework for Payments 60 (4) Anti-Money Laundering and Anti-Terrorist Financing Regulations C. Supervision and Enforcement China 64 a. System 64 (1) Regulatory Bodies 64 (a) Government Authorities 65 I State Administration for Industry and Commerce (SAIC) II Ministry of Commerce (MOFCOM) 66 HI Ministry of Industry and Information Technology (MIIT).. 66 IV Ministry of Public Security 67 V Ministry of Culture 67 VI Ministry of Finance (MOF) 68 VII People's Bank of China (PBC) 68 VIII General Administration of Customs (GAC) 68 IX State Administration of Taxation (SAT) 69 X State Post Office Bureau (SPOB) 69 XI General Administration of Press and Publication (GAPP, the State Copyright Bureau) 70 XII State Food and Drug Administration (SFDA) 70 XIII China Securities Regulatory Commission (CSRC) 70 (b) Trade Associations 70 I China Electronic Commerce Association (CECA) 71 II Internet Society of China (ISC) 71 III China Consumers'Association (CCA) 72 (c) Public Media Supervision 72 (2) Supervisory Objects in Online Commodity Trading 72 (a) Online Commodity Operators and Online Service Providers 73 (b) Online Trading Platform Service Provider 73 (3) Regulatory Contents in Online Commodity Trading 74 (a) Regulations on the Qualification of Operating Agents Engaging in Online Commodity Trading 74 (b) Regulations on Operating Objects in Online Commodity Trading.. 74 (c) Regulations on Online Commodity Trading and Competitive Behaviour 75 XII
4 (d) Supervision of Electronic Contracts 75 (e) Protection of Intellectual Property Rights 76 (f) Supervision of the Protection of Consumer Rights and Interests.. 76 (4) Experiences of Various Chinese Local Governments in Online Commodity Trading 76 (a) Research Carried out on the Regulation of Online Commodity Trading Activities 76 (b) Improving the Market Access System 77 (c) Issuing Electronic Copies of Enterprises' Business Licenses as a Proof of the Identity of the Online Transacting Entity 77 (d) Improving the Registration and Certification of Online Commodity Trading Agents and Establishing an Operating Agent Information Database 77 (e) Promoting the Online Trading Credit Evaluation System and Improving the Credit Categorisation of Online Business Operators 78 (f) Establishing a Supervision Platform for Online Commodity Transactions 78 (g) Establishing a Network Patrol System, Cracking Down on Illegal Online Transactions 78 (h) Establishing and Improving the Online Rights Protection System and Consumer Complaint Platform 79 b. Mechanisms 79 (1) Legal Supervision 79 (2) Administrative Supervision 80 (3) Market Supervision 80 (4) Other Regulatory Means 81 EU/Germany 81 a. System 81 (1) EU Supervisory System 82 (a) EU Regulations on Market Surveillance of Consumer Protection in E-Commerce 82 I No Central Agency at the European Level 83 II European Network for Member States' Supervisory Institutions 83 III Consumer Organisations 84 IV Self- or Co-regulation 85 (b) Regulations on Market Surveillance in E-Payment Systems 86 (2) German Supervisory System 87 (a) German Regulations on Market Surveillance of Consumer Protection in E-Commerce 87 I No Central Agency at German Federal Level 87 II German Network of Federal Supervisory Authorities 88 III Agency Network at Lander Level 88 IV Consumer Organisations 89 V Self-or Co-regulation 89 (b) Market Surveillance of Payments in E-Commerce Systems 89 b. Mechanisms 90 (1) Little Pre-Market Market Surveillance 90 (2) Ongoing Supervision of Payments 91 (3) Emphasising Post-Market Market Surveillance by Granting Enforceable Consumer Rights - The Strong Role of Consumer Organisations and the Courts 91 (4) High-Level Market Surveillance: Agreeing at the EU Level to Frame Market Surveillance in Europe 91 (5) Involvement of Private Standard-Setting Bodies 91 (6) Fostering Self-Regulation 92 XIII
5 III. Consumer Protection in the E-Commerce Market 93 A. Basic Notions of Consumer Protection China EU/Germany 94 a. Scope of Consumer Protection 94 (1) Contractual 94 (2) Copyright Infringement 94 b. Consumer 95 c. Distance Contracts 98 B. Pre-Contractual Legal framework 101 a. RealName 101 (1) China 101 (2) EU/Germany 103 b. Licence 103 (1) China 103 (2) EU/Germany 104 c. Information Duties 105 (1) China 105 (2) EU/Germany 106 (a) EULaw 107 I Consumer Information Requirements in Directive 2000/31/ EC 107 A Information about Persons and Entities Involved in Information Society Services 107 B Substantial Quality of Information to be Transmitted II Contractual Consumer Information Requirements of Directive 97/7/EC 109 A Information with Regard to the Supplier 109 B Product Information 109 C Contract Information 110 D How is Information Displayed and Distributed? Ill XIV III Information Requirements Expected in the New Consumer Rights Directive 112 (b) German Law 112 I Information with Regard to the Seller 112 II Product Information 113 III Contract Information 114 IV How is Information Displayed and Distributed? 114 d. Misleading Advertising 117 (1) China 117 (a) Development of the Online Advertisement Market 117 (b) Legal Regime for Online Advertisement 117 (2) EU/Germany 118 e. Burden of Proof 120 (1) China 120 (2) EU/Germany 120 f. Duties Platform 121 (1) China 121 (2) EU/Germany 124 g. Data Protection 125 (1) China 125 (2) EU/Germany Enforcement 131 a. Supervision (administrative) 131 (1) China 131 (a) Supervision of Electronic Contracts 131 (b) Consumer Rights Protection Platform 132 (2) EU/Germany 133
6 b. Claims and Injunctions (private) 134 (1) Individual 134 (a) China 134 (b) EU/Germany 134 (2) Representative actions 135 (a) China 135 (b) EU/Germany 136 (3) Third Party Injunctions 137 (a) China 137 (b) EU/Germany 138 c. Alternative Dispute Resolution (ADR) 139 (1) China 139 (2) EU/Germany Self-or Co-Regulation 143 a. China 143 (1) Self-Regulation of Online Business Operators 143 (a) Self-Regulation of Online Merchants - Business Alliances 144 (b) Self-Regulation of Online Commodity Trading Platforms - Voting for the 'Fortune' Project 145 (c) Self-Regulation of Online Commodity Trading Platforms - Taobao Cracks Down on Fake Goods 145 (d) Self-Regulation of Online Commodity Trading Platforms - Taobao Rules 145 (e) dangdang.com Launched Measures to Improve Its After-Sale Service: Five-Fold Compensation For Fake Goods 146 (f) 360buy.com Set Up a CNY Five-Million Guaranteed Fund to be the First to Launch an Advance Refund Policy 147 (g) Letao.com Set Up a CNY One-Million Anti-Counterfeiting Fund and Promised a Ten-Fold Compensation for Fake Goods 147 (2) Trade Associations Promoting Self-Regulation 147 (a) China Electronic Commerce Association (CECA) 148 (b) Internet Society of China (ISC) 149 (c) China Association of Small and Medium Enterprises (CASME) (d) Credit Star Program Credit Management Center 151 b. EU/Germany Non-Legal Tools 155 a. Labels 155 (1) China 155 (a) Definition of Transparency in Credit Information 155 (b) Functions of Transparency in Credit Information 155 (c) Case Study: Credit Star Program 156 (2) EU/Germany 157 b. Standardisation Organisations 159 (1) China 159 (2) EU/Germany 160 c. Consumer Information 160 (1) Comparative Testing 160 (a) China 160 (b) EU/Germany 162 (2) Consumer Advice 164 (a) China 164 I Legal Functions of CCA 164 II Specific Measures of CCA 165 (b) EU/Germany 166 I Information Provided by the European Commission 166 II Information Provided by the German Government 167 III Information Provided by the Federation of German Consumer Organizations (vzbv) 168 (3) Consumer reviews 168 XV
7 XVI Table of Contents (a) China 168 (b) EU/Germany 169 C. Contractual procedures Legal Framework 171 a. Conclusion of Contracts 171 (1) China 171 (2) EU/Germany 171 (a) EULaw 171 I Right to Consent to Certain Means of Distance Communication 171 II Inertia Selling 172 (b) Germany 172 I Offer and Acceptance Online 172 II Consent to Certain Means of Distance Communication 173 III Inertia Selling 174 b. Forms 174 (1) China 174 (2) EU/Germany 175 c. E-Signatures 177 (1) China 177 (2) EU/Germany 178 d. Contract Terms 179 (1) China 179 (2) EU/Germany 180 e. BurdenofProof 183 (1) China 183 (2) EU/Germany 183 (a) EU 183 (b) Germany 183 f. Payment 185 (1) China 185 (a) Payment Risks 185 (b) Payment Service Providers 185 (2) EU/Germany Enforcement 188 a. China 188 b. EU/Germany 189 (1) Surveillance of General Contract Terms 189 (2) Surveillance of E-Payment Systems Market-Driven Instruments in the EU/Germany 190 a. Choice in Payment Methods 190 (1) Credit Transfer 190 (2) DirectDebit 190 (3) CreditCard 191 (4) Escrow Service 192 (5) Other Payment Services 192 b. Trust and the Role of Branding 192 D. Post-Contractual Performance 193 a. China 193 b. EU/Germany 194 (1) Performance Time Limit 194 (2) Special Regulations on Sale by Delivery to a Place other than the Place of Performance Local Jurisdiction 195 a. China 195 b. Germany Remedies 198 a. China 198
8 b. EU/Germany 199 (1) EULaw 199 (a) The General Principle of European Contract Law: Delivery of Goods Must Be in Conformity with the Contract 199 (b) Rights of the Consumer 200 (c) Repair or Replacement Free of Charge 201 (d) Duty to Repair or Replace Free of Charge 201 (e) Duty to Repair or Replace in Reasonable Time 202 (f) Rights of the Seller: Refusal of Impossible or Disproportionate Remedies 202 (g) Reduction or Rescission 202 (h) Right of Withdrawal 203 (i) BurdenofProof 204 (j) Deviations from these Rights and Duties 204 (k) The Draft Proposal on Consumer Rights 205 (2) German Law 206 (a) Duties of the Seller 206 I Liability for Lack of Conformity 206 II Duty to Repair or Replace in Reasonable Time 207 (b) Rights of the Seller 208 (c) Rights of the Consumer 208 I General Remedies in Sales Law 208 II The Primary Remedy to Cure 208 (d) Secondary Rights 208 I Reduction 209 II Right to Claim Damages and Futile Expenditure 209 III Right of Withdrawal 210 IV Cancellation of Fraudulent Payment 210 (e) Special Consumer Remedies in Distance Selling Contracts 211 I Right of Revocation 211 II RightofReturn Enforcement 212 a. China 212 b. Germany 213 IV. Evaluation of Different Instruments 215 A. China Insufficiencies in Administrative Supervision 215 a. Blind Spots Resulting from Overlapping Duties of Administrative Departments 215 b. Conflicts of Jurisdiction 216 c. Inconsistencies between Different Laws and Regulations on E-Commerce d. Inadequacy in Pre-Trading Supervision 217 e. Insufficient Supervision of the Quality of Online Commodities 217 f. Insufficient Supervision of Online Advertising 217 g. Insufficient Supervision of Trading Processes 218 (1) Low Level of Coordination between Different Supervisory Departments 218 (2) Blind Spots in Supervisory Scope 219 h. Absence of Post-Trading Supervision Insufficiencies in Legal Supervision Insufficiencies in Trade Association Supervision Prospects and Suggestions for Online Consumer Protection 221 a. Laws and Regulations 221 b. Government Regulation 222 c. Industry Self-Regulation 223 d. Building Market Reputation 224 e. Establishing a Social Credit Investigation and Appraisal System Other Aspects 224 a. Technical Support 224 XVII
9 (1) The Application of Cloud Computing in Online Trading Security 224 (2) The Application of Cloud-Computing-Based Massive Data Mining in Credit Management 225 b. Construction ofa Beneficial Environment 225 c. Credit Standards 225 B. EU/Germany Individual Enforcement and Beyond 226 a. Courts, ADR and ODR 226 b. Administrative Enforcement of Private Law 227 c. Unfair Competition and Unfair Contracts 228 d. Extension Toward Collective Compensation Claims Consumer Confidence 231 a. Standard-Setting 231 b. Procedure, Example: European Standard Bodies 231 c. Labels and Trustmarks 232 d. Relationship between Standard-Setting, Labelling and Liability 233 e. Effects of Standard-Setting, Labelling and Trustmarks on the Legal System Conclusion 234 Epilogue 235 List of Authors 239 XVIII
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