Live streaming sales cannot be carried out, who should compensate for the losses?
2024-11-14
The return and refund generated during the anchor's sales period were required by the company to be deducted from their salary. Can the commercial risks of live streaming sales be transferred to workers? There is a contract dispute between the front-end and back-end merchants of the cooperative live streaming sales due to the question of "who is responsible for the leftover goods". Who bears the risk of unsold goods? In the recent "Double 11" shopping festival, live streaming e-commerce has innovated consumer scenarios and driven the development of traffic economy. The recently released "Report on High Quality Development of Live E-commerce Industry (2023-2024)" blue book shows that the overall number of employees in China's e-commerce industry has exceeded 70 million. Due to the continuous interactive cycle of "people" (hosts, consumers, service agencies, etc.), "goods" (subject matter), "venues" (various live streaming platforms) and other links in the live streaming industry chain, there are diverse "online and offline" and "behind the scenes" entities, and various problems continue to emerge in the live streaming industry. Due to the complexity of the involved parties, disagreements arise from time to time regarding how to share commercial risks in live streaming sales. In this regard, experts suggest refining the terms of live streaming contracts, clarifying the evaluation criteria for product promotion effectiveness, distribution methods for sales revenue, product quality responsibility obligations, etc., and establishing a rating and credit mechanism for the live streaming industry. Who will bear the commercial risks and losses? Spending 25000 yuan to hire millions of fans and live streamers to promote products, but with zero transaction volume? Can the shipping fee already paid by the merchant be refunded? In January 2023, Shanzhu Company signed an agreement with Baihe Company, agreeing that Baihe Company would provide anchors with a fan base of 1 million to 5 million to carry out 5 live streaming sales for Shanzhu Company, with a target sales revenue of 420000 yuan and a cooperation docking fee of 25000 yuan. According to the agreement, if Baihe Company fails to achieve the sales target as agreed, the above-mentioned cooperation docking fee must be refunded. However, after arranging three live broadcasts for the products of Shanzhu Company by the anchor, the transaction amount of the live broadcast was surprisingly 0 yuan. Due to the inability of both parties to reach an agreement on whether to refund the cooperation docking fee, Shanzhu Company filed a lawsuit with Quanshan District People's Court in Xuzhou City, Jiangsu Province, requesting the termination of the agreement and demanding that Baihe Company refund all cooperation docking fees. The court ruled that Baihe Company had breached the contract and was required to return a cooperation docking fee of 25000 yuan. The reporter found that in cases related to the sharing of commercial risks and losses in live streaming sales, "whether the anchor should bear responsibility" is another controversial focus. Anchor Liu has been conducting live streaming sales on an e-commerce platform account opened by a certain company since February 2020. The labor remuneration is calculated based on the "appearance fee" plus the "commission for settling the live streaming shipment amount", and is paid monthly. Liu broadcasts live sales online every day according to the schedule provided by the company. The product prices are determined by the company, and the studios and tools used for his live broadcasts are provided by the company. In July of the same year, in order to recover the unpaid wages owed by the company, Liu applied for labor arbitration, requesting confirmation of the existence of a labor relationship between him and the company and obtaining support. The company is dissatisfied and has filed a lawsuit with the Suzhou Intermediate People's Court in Jiangsu Province. During the trial of the case, the company involved claimed that Liu did not have a labor relationship with them, but rather a civil partnership, and that the returns and refunds generated during Liu's live broadcast should be deducted from his salary. The court did not support this. Relationship recognition and contract agreement are key factors in determining how to share the commercial risks and losses of live streaming sales. "Whether the labor relationship is established" and "how the contract terms are agreed upon" are usually two important judgment elements. The unclear division of legal responsibilities and vague cooperation agreements are important reasons for the emergence of live streaming disputes Associate Professor Fan Lina from the China Institute of Labor Relations believes that live streaming sales have broken through traditional legal relationships, and the existing laws are not clear about the rights and responsibilities of live streaming promotion services or live streaming promoters, leading to difficulties in dividing responsibilities and obligations. In the case of anchor Liu mentioned above, the Suzhou Intermediate People's Court held that Liu followed the company's arrangements and accepted daily management during the work process, and there was a personal attachment relationship between the two parties. Therefore, it meets the requirements for the establishment of a labor relationship, and the company must pay Liu's outstanding wages. There is no evidence to suggest that both parties have explicitly agreed on whether the return and refund can be deducted from the anchor's salary, and the company has not made corresponding deductions in the calculation method of commission salary before. Therefore, the court did not support the company's claim. Assuming there are conditions and common practices for not calculating commission salary base for returns and refunds, it is also necessary to analyze whether the reason for returns and refunds should be attributed to the quality of the company's products or the work errors of the anchor The presiding judge of the case pointed out that according to the provisions of China's labor law, the commercial risks of the employer cannot be transferred to the employee, so returns and refunds should not be deducted directly from the employee's labor remuneration. Professor Xue Jun from Peking University Law School stated that whether the anchor is responsible for the return and refund of live broadcasts should be determined based on the contractual agreement between the two parties. "In the contract related to live streaming sales, all parties should clarify the pit fees, risk sharing models, breach compensation methods, etc. This is the premise and key to the division of rights and obligations. If there is an unclear "underwriting commitment" in the contract terms, but the goods are not sold out during the actual live broadcast, who is responsible for the remaining goods? The Second Intermediate People's Court of Shanghai disclosed a live streaming dispute case in May this year, in which a trading company that "promised to underwrite" during live streaming sales was ordered to pay for unsold inventory. An accurate and reasonable legal interpretation of the contract should be made based on the agreed content of the contract, taking into account factors such as the negotiation process, performance facts, as well as the costs, risks, and benefits of both parties Judge Wang Xi in this case pointed out that necessary loopholes need to be filled in the contract to determine the responsibility, including but not limited to the risk of unsold goods. Refine the contract and establish a rating and credit mechanism. Fan Lina suggests that in order to reasonably share the commercial risks of live streaming e-commerce and avoid disputes during contract performance, attention should be paid to refining the contract terms when signing relevant agreements, and the competent department should promote the establishment of a rating and credit mechanism for the live streaming industry. The contract should specify the rights and obligations of both parties, including the content, time, and frequency of the live broadcast of the anchor, as well as the quality of the goods and after-sales service provided by the merchant Fan Lina further pointed out that the evaluation criteria for product promotion effectiveness should be clarified, the distribution method of sales revenue should be defined, and the responsibility for product quality should be stipulated. "At the same time, it is necessary to agree on the termination conditions of the contract, such as the termination method and consequences when one party seriously breaches the contract or force majeure causes the contract to be unable to continue to be performed." Currently, live streaming supervision is gradually engaging in intermediate supervision and post punishment, shifting towards pre prevention, and the relevant mechanisms are becoming increasingly perfect. In August of this year, the Beijing Municipal Administration for Market Regulation issued the "Compliance Guidelines for Live Streaming Sales in Beijing", which proposed that operators of live streaming sales platforms should establish a mechanism for publicizing the results of serious illegal and irregular behaviors. For those who take measures to deal with serious illegal and irregular behaviors of operators of live streaming sales rooms, the results of the disposal should be publicized in an appropriate manner. The most important thing is to break the information asymmetry Xue Jun stated that all parties can jointly establish a rating and credit mechanism for the live streaming industry, with third-party organizations participating in the evaluation of the live streaming hosts or agencies' sales capabilities, and establish a credit evaluation system based on past sales performance, illegal and irregular records, and other indicators. The platform should establish credit management systems such as merchant and anchor credit evaluation rewards and punishments, improve the system for storing information on product and service transactions, and legally preserve content related to online live streaming marketing transactions. In addition, credit penalties should be imposed on operators of live streaming sales rooms who violate laws and regulations, strengthen their compliance and trustworthiness awareness, and publicize the credit evaluation mechanism in an appropriate manner Fan Lina said. (New Society)
Edit：Rina Responsible editor：Lily
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