中美经贸协议背景下电商知识产权保护优化路径研究

中美经贸协议中约定了我国在"打击网络侵权"和"主要电子商务平台上的侵权"方面的知识产权保护义务与责任,且高于我国现行法律对电商平台知识产权的保护标准。本文在梳理背景并对照分析具体条款的基础上,得出我国的电商立法规范有待完善、行政执法队伍有待扩充的困境。结合国内外电商法律保护需求与规制形势,提出了应从保护标准、处罚标准、行政管制等角度构建电商平台知识产权保护制度优化体系的五点建议,并需注重社会效应与实践效果,引导跨境电商的多方主体积极合作。     

电子商务中消费者权益保护的经济分析

在电子商务环境下 ,经营者和消费者的信息不对称尤其严重 ,这使得电子商务中的消费者权益保护问题更为突出。采用不完全信息的动态博弈模型对电子商务中的消费者权益保护问题进行深入的分析 ,同时 ,为了减少电子商务中经营者和消费者之间的信息不对称 ,以维护电子商务中消费者的权益 ,必须制定相应措施     

Consumer Protection in Cyber Space and the Ethics of Stewardship

This paper explores how consumer protection is evolving in the information-communications technology (ICT) sector. Traditionally, consumer protection law regimes are vertical in design and somewhat paternalistic in attitude. Requirements are imposed by governmental agencies on providers of goods and services with a view to protecting consumers. In many cases, consumers are not actively engaged by regulatory regimes in their own protection and may not be able to contract out of provisions designed for their protection. In the context of internet-based activities, however, a paradigm shift is necessary to protect not only the individual consumer but the wider network of consumers using the internet. This paper explores what consumer protection should look like in our hyper-connected, online world. Its central argument is that a new sort of model is necessary for consumer protection in the ICT sector. In the context of internet-based activities, regulators must engage consumers on a horizontal level as co-stewards of the internet. This involves more than just education about the risks of malware and online scams. The consumer protection framework must draw consumers into its structure as proactive agents working collaboratively with government, internet service providers, and other stakeholders to promote cyber security.     

Online Price Discrimination and EU Data Privacy Law

Online shops could offer each website customer a different price. Such personalized pricing can lead to advanced forms of price discrimination based on individual characteristics of consumers, which may be provided, obtained, or assumed. An online shop can recognize customers, for instance through cookies, and categorize them as price-sensitive or price-insensitive. Subsequently, it can charge (presumed) price-insensitive people higher prices. This paper explores personalized pricing from a legal and an economic perspective. From an economic perspective, there are valid arguments in favour of price discrimination, but its effect on total consumer welfare is ambiguous. Irrespectively, many people regard personalized pricing as unfair or manipulative. The paper analyses how this dislike of personalized pricing may be linked to economic analysis and to other norms or values. Next, the paper examines whether European data protection law applies to personalized pricing. Data protection law applies if personal data are processed, and this paper argues that that is generally the case when prices are personalized. Data protection law requires companies to be transparent about the purpose of personal data processing, which implies that they must inform customers if they personalize prices. Subsequently, consumers have to give consent. If enforced, data protection law could thereby play a significant role in mitigating any adverse effects of personalized pricing. It could help to unearth how prevalent personalized pricing is and how people respond to transparency about it.     

基于信任的移动社交电子商务购买意愿影响因素

近年来,越来越多的个体、商家加入移动社交网络平台开展电子商务活动,对网络零售产生了重要影响。但由于缺乏监管和行业规范的引导,消费者感知风险存在,影响消费者交易行为,且理论研究较少,也不能为此类电子商务模式的发展提供理论指导。信任是电子商务活动的基础,信任对消费者购买意愿产生直接影响,平台可用性、消费者内在特征和行为以及商家会直接或间接影响非移动社交电子商务模式消费者的购买意愿。而在移动社交电子商务中,由于其模式的独特性,以往影响消费者信任的因素已难以有效反映移动社交电子商务消费者的购买意愿。此外,商家通过社群与若干消费者建立不同程度的连接,需要研究连接中强弱关系对消费者购买意愿的影响程度。因此,基于移动社交电子商务的特点假设影响消费者信任和购买意愿的因素,即除系统质量、信息质量、产品质量、服务质量四个影响非移动社交电子商务消费者信任的因素外,还包括社群关系和网购认知这两个影响移动社交电子商务消费者信任的新因素,接下来假设上述因素对消费者感知信任和感知风险两个中介变量存在影响,并进一步影响消费者购买意愿,继而再通过构建结构方程模型进行实证分析。实证结果显示,系统质量、信息质量、产品质量、服务质量均不同程度正向影响消费者感知信任,负向影响感知风险,而社群强弱关系对购买意愿的影响与弱关系理论结论相反,网购认知对增强消费者感知信任作用明显,消除消费者感知风险是增强消费者信任的重要途径。     

从网络点击合同效力分析看消费者权益法律保护

网络点击合同的效力不等同于传统格式合同效力,从主体缔约能力的确定、意思表示的真实性、电子格式条款的效力判定分析有助于维护消费者权益,实现网上交易的公平。设立网店实名制度和撤销权制度等配套制度、规制网络点击合同电子格式条款是网络消费者权益保护的法律应对措施。     

Understanding the Antecedents and Consequences of Live Chat Use in Electronic Markets

Online shopping has progressed from having consumers passively browse through the webpages of online stores to having them proactively engage in communication dialogues with the sellers themselves via live chat. Modern-day consumers can now directly contact online sellers and inquire about the products they intend to purchase through the live chat medium available in the webpages of online stores, such as Taobao.com. In this study, the conceptual framework of motivation, opportunity, and ability was extended to understand the antecedents of using live chat and to lengthen such an understanding on one’s eventual intention to transact on the website from the trust-oriented perspective. A total of 222 online consumers of Taobao.com were surveyed, and their responses validated the proposed conceptual model and confirmed the research hypotheses. Results of the investigation indicated that perceived information asymmetry and fears of seller opportunism, encapsulated under motivation dimension, and perceived personal expertise, which manifests ability dimension, significantly influence the use of live chat by consumers. The results further demonstrated that live chat use positively affects the perceived interactivity of consumers, thereby increasing their intention to transact. The influence of live chat use on the perceived interactivity of consumers and its effect on one’s intention to transact online are negatively moderated by the trust of consumers in a seller. The findings contribute to our understanding communication services for e-commerce in general and to the realization of real-time communication technology in particular.     

Corporate Social Responsibility and International Human Rights Law

The United Nations Special Representative on Transnational Corporations and Human Rights, John Ruggie, has adopted a new framework for considering this issue within the international legal system. This article examines this framework in terms of its coherence, its consistency with international human rights law and how it can be ‘operationalized’ (which is required by the United Nations). In regard to the states legal obligation to protect human rights, it is considered whether this obligation is broader and deeper than is envisaged in the framework, especially if it can include the extra-territorial activities of corporations. The corporate responsibility to respect human rights is examined in terms of its conceptual and definitional problems, and the article also questions whether there will be sufficient legal remedies available to victims under the framework.     

Consumer rights of the elderly as vulnerable consumers in South Africa: some comparative aspects of the Consumer Protection Act 68 of 2008

Although consumer protection is not a new concept in South African law, the Consumer Protection Act 68 of 2008 (CPA) now provides for a much more comprehensive and encompassing mechanism to protect consumers. Consumers are protected, not only in the provision of goods and services, the conclusion of contracts but also in the promotion and marketing thereof. The CPA further provides special protection to a particular type of consumer which is the vulnerable consumer and includes elderly consumers. Importantly, and for the first time in the history of South African law, the consumer is provided with eight core fundamental consumer rights. As this contribution is an attempt to provide an interdisciplinary analysis from a legal perspective, identification of what is considered to be an ‘elderly' consumer, needs to be assessed by referring to relevant empirical studies from both an international as well as South African perspective. The focus of this study is on the protection of the elderly as a category of vulnerable consumers in terms of the CPA. The investigation will attempt to show that the elderly is protected in terms of all eight of the fundamental consumer rights within the CPA. Special reference will be made to two fundamental rights of the consumer in terms of the CPA. First, the elderly consumer's right to equality in the consumer market (Part A of the CPA) which provides additional protection as the CPA also refers to the Constitutional right to equality. Second, the elderly consumer's the right to fair and responsible marketing (Part E of the CPA) which in terms of the research is compared with the EU Unfair Commercial Practices Directive. Certain problems regarding elderly consumers are identified and the importance of consumer rights as well as the implementation of the correct consumer policy is argued.     

Fundamental Rights and the European Regulation of iConsumer Contracts

This paper addresses the question of how fundamental rights affect European legislation and adjudication on contracts regarding digital information services (iConsumer contracts). Fundamental rights may be seen as representing political choices for the protection of certain values in society, but at the same time, they are enacted rules of the legal system, which may be invoked to enforce the protection of the interests they represent. It is submitted that because of this double-faced nature, they can bring to the fore policy issues in contract legislation and case law. Fundamental rights can thus play a role in evaluating the policy choices that are being made in the review of the acquis communautaire in the field of consumer law. For iConsumer contracts, that means that the rights of consumers, authors, and suppliers of copyright-protected content affect the choice of rule-solutions on the European legislative level. Furthermore, these rights have an impact on the case law of the European Court of Justice in the field of e-commerce. Fundamental rights help define the various rule-solutions the Court can choose from and thus demarcate the law-making capacity of the judiciary.

电子商务ODR争议解决机制研究

现阶段,对于有效解决电子商务纠纷问题,我国传统的争议解决模式已不适用,主要是在法律准备、裁判执行力、行政手段参与及纠纷解决成本方面都存在困境。ODR作为ADR在网络空间的拓展和延伸,可有效弥补传统争议解决机制的不足。需要高度关注的问题是ODR作为一把双刃剑,在具备了比传统争议解决方式更多优点的同时,也暴露出了解决机制缺乏有效性、解决结果执行缺乏保障性、保密和信任机制不完善等诸多问题。我国应以立法方式确定ODR裁决的效力;进一步加快网络信息平台建设,切实加强区域间及国际间合作,从而有效推进我国ODR模式的快速发展,更好的维护网络消费者合法权益。     

“To Be or Not to Be an Auctioneer?” Some Thoughts on the Legal Nature of Online “eBay” Auctions and the Protection of Consumers

This paper discusses the legal classification of online “eBay” auctions. The discussion has key implications on the scope of consumer protection law as sale by auctions are, for example, excluded from the scope of the Consumer Protection (Distance Selling) Regulations 2000. The paper uncovers that online “eBay” auctions cannot always be considered as traditional auctions and that eBay, as an intermediary, is not to be considered as an auctioneer. This creates difficulties associated with a distributive application of consumer protection laws such as the Consumer Protection (Distance Selling) Regulations 2000. Another set of difficulties is associated with a lenient legal regime applicable to the liability of eBay under the Electronic Commerce (EC Directive) Regulations 2002. The paper concludes that there is an urgent need to clarify the legal classification of online auctions and to rethink the liability of online auction sites to better protect consumers.

Internet Jurisdiction for E-commerce

Internet jurisdiction is an area of increasing concern to e-commerce because of the growth in cross-border e-tailing, both within the United States and globally. Therefore, the need for a global solution is also increasing. In response, this article first defines Internet jurisdiction, also known as cyber jurisdiction, and discusses the risks of Internet jurisdiction for retailers and consumers. Drawing from legal research, the authors examine the legal theories for jurisdiction and the application to e-commerce. Their focus is on United States law because both US and foreign businesses must understand US jurisdictional law due to increased globalization from expanding international trade and more frequent contact with US companies and markets brought about by the Internet. Since standards and case law are still developing worldwide, the authors conclude by providing managerial recommendations to reduce the uncertainty of jurisdiction, should legal action be initiated.     

德国网络零售业成功经验与借鉴

德国网络零售业的成功经验主要体现在网络零售业的多元化,网络零售业法规及信用体系较完善,建立了众多的电子商务行业协会,网络建设居世界前列,拥有完善的物流体系等方面。我国应借鉴德国的成功经验,针对我国目前网络零售业市场准入门槛低、法规不健全、销售形式单一、行业协会有待完善、网络建设仍需加强,物流业建设及管理迫在眉睫的现状,有关部门、协会及商家应共同促进我国网络零售业的立法、监督与发展,我国的网络零售业消费者能更好地提高法律意识,维护自己的合法权益。     

网购食品消费者选择行为的影响因素

利用1 790份网络调查问卷数据,采用相关分析、交叉分析等统计方法,研究网购食品消费者选择行为,分析网购食品市场渗透率不高、用户黏性不足的主要原因,结果表明,消费者个性特征差异会导致对网购食品的不同态度,进而影响消费者对网购食品的选择行为;良好的网购环境、物美价廉的食品、优质的网购服务,是促使消费者选择网购食品的主要因素,对网购食品安全的担忧、习惯于传统购物方式、网购维权难度大,是抑制消费者选择网购食品的主要因素,尤其是网购食品"难维权、维权难"可能会放大消费者对网购食品产生的消极态度。为此,应加强网购食品多主体协同监管,消除消费者怀疑心理和不放心态度;建立以消费者需求为中心的网购食品质量安全供应链管理体系,推动线上市场和线下实体店紧密结合、融合发展;完善网购食品维权制度,畅通维权渠道。     

数据生产者权之证成——以数据资源排他权为视角

非个人数据作为一种资源,其价值在于不断地流通。而在现行法律框架内,合同法+侵权法+技术措施为数据生产者架构了一个事实财产权的框架,在实现数据保护的同时加剧了数据锁定之风险,不能为数据流通提供行为预期。而数据赋权的意义在于,承认数据的事实财产权,并进一步将之塑造为实证法上的权利概念,从而为数据流通提供行为预期。数据生产者(包括单个数据生产者和数据集生产者)作为数据流通的发起者,在数据生产过程中投入了大量的人力、财力,因而需要赋之以权利,通过法律上的激励机制实现数据流通。排他权是权利结构的核心,数据资源的排他权并非没有先例可循,商业秘密即可借鉴。对于数据资源排他权的塑造,其维度有二:一是通过合同界定出价值量相对完整的客体,即单个数据抑或数据集(维度广、种类多、数据量大);二是通过行为规范,即从来源合法和使用不违法两个层面构建数据利用行为规范。只是客体特定化需要通过技术手段(如可追溯日志)甚至法院确权程序(如果有的话)来确定。其结果就是,该项权利消弭了对世性,即有限对世,丧失控制即丧失权利。这样的权利设计既迎合数据资源属性,亦符合财产法原理。     

Multichannel customer purchase behavior and long tail effects in the fashion goods market

The fast-paced growth of e-commerce is impacting the type and variety of products consumers purchase across channels. A commonly held theory, known as long tail theory, posits that online sales are less concentrated at the top of the sales distribution than offline sales, and that more variety is bought online, making the tails of the overall sales distribution denser with the growth of e-commerce. Most of the literature testing the long tail theory has focused on examining entertainment goods markets that do not require much physical examination, and has predominantly found results consistent with the theory. However, the magnitude and antecedents of the observed long tail effects might be different for product categories containing products that require more physical examination before purchase, such as fashion goods. In this study, using detailed individual and transaction level panel data from two multichannel fashion goods retail brands, we show that while the shift to the online channel results in a decrease in the concentration of overall sales for both brands, this change mostly results from consumers buying different products online rather than consumers buying a greater variety online compared to offline. We show that the flattening of the overall sales distribution with the growth of e-commerce in our data is driven by consumers sorting their purchases into channels based on product characteristics. In contrast to the recommendations from the previous long tail literature, our results show that fashion apparel retailers do not need to offer broader assortments online compared to offline, but they may find it profitable to carry or emphasize a different product mix online compared to offline. Our results also provide guidance to fashion goods retailers in curating their online and offline assortments and setting inventory management strategies across the channels.     

Foods produced using biotechnology: how does the law protect consumers?

This paper addresses the following subjects: biotechnology and consumers, concern about risks, consumer acceptance, labelling of foods produced using biotechnology, the legal approach to consumer protection, and consumer protection policies relating to biotechnology products in the European Union, the United States, Turkey and global institutions such as the Convention for Biological Diversity (CBD) and the World Trade Organisation (WTO). It is likely that biotechnology will gain ground much more rapidly in the twenty‐first century than in the past. Despite rapid, detailed and precise advances in gene technology, its applications have not been the received with a great deal of consumer enthusiasm. Consumers have approached genetically modified foods with considerable apprehension and opposition. Consumer concerns about bioengineered food products focus on the questions of human health, environmental and social risks and benefits. The most important stages in the process of marketing new foods produced using biotechnology are to demonstrate user need and consumer acceptance. Generally, the technical complexity of biotechnology makes it difficult for consumers to understand details of the product and the specific attributes of biotechnology applications. Scientific uncertainty, the nature of consumer concerns and general reluctance to accept biotechnology products, increase the importance of consumer protection. Legal protection is a very important factor in the solution of new social problems related to technological advances. More specifically, consumer and environmental law support consumer protection related to foods produced with biotechnology. The basic principles of consumer law can be re‐formulated as consumer rights. Environmental law is a new phenomenon, but precautionary principles and public participation in decision‐making for environmental law are relevant to consumer protection relating to bioengineered food products.     

Digital Content Contracts for Consumers

The application of consumer law to digital content contracts encounters a number of obstacles. Some of these are rather typical for digital content markets, e.g., the legal consequences of the classification of digital content as “goods” or “services” and, more importantly, the absence of general benchmarks to evaluate the conformity of digital content. Other problems, such as the limited usefulness of consumer information and the position of underage consumers, are not as such reserved to digital consumers, but they are amplified in the digital content markets. Moreover, particular attention is paid to the complex relationship between copyright law and consumer law. This paper explores the extent to which consumer (contract) law is fit to address the problems faced by digital consumers wishing to enjoy the benefits of digital content and examines whether the on-going initiatives at national and European level are likely to provide relief. Finally, recommendations for improvement are put forward in cases where the analysis shows that the problems identified are not or are insufficiently solved by these initiatives.     

浅析快递邮件的损害赔偿

伴随电子商务的快速发展,快递业给消费者提供了更为快捷、便利的工作及生活方式,但同时因快递邮件也带了快递服务中某些法律方面的纠纷。其中快递邮件损害赔偿一直是社会各界关注的热点问题。本文首先阐述了快递邮件损害赔偿的内容,接着指出快递邮件损害赔偿的法律依据,其次,对快递邮件损害赔偿的法律适用问题作了初步的分析和探讨,最后从国家立法、快递企业,消费者三个层面思考,为进一步完善快递行业制度提出了若干建议。