我国微商行政监管法律问题研究

发布时间：2018-06-11 23:03

本文选题：行政监管 + 微商　；参考：《安徽大学》2017年硕士论文

【摘要】：微商从2012年起步,到如今已经初具规模。但是随之而来的问题就更多:虚假广告的宣传、商品质量问题严重、消费者投诉无门、市场监管空白等等。至此我们不禁反问什么是微商?微商的性质是什么?为什么行政监管部门会置之不理?消费者的合法权益该何如保护?这正是摆在我们面前亟待解决的一系列问题。微商的定义可以从广义和狭义两个方面区分,狭义的微商仅指基于微信平台提供商品交易活动,广义上微商泛指企业或者个人依托各种社交平台,利用各种推广手段,提供商品和服务等各种商业活动。微商的法律性质曾遭到质疑,一方面,微商的运营模式会衍生出一些问题,比如组织传销活动;另一方面就是消费者协会的不认可,认为微商不具有经营者的主体资格,只是"偶发性的交易行为"。原因有以下四点:一是微商经营者与社交平台的普通用户很难区分,发布广告也具有随意性,且广告受众群体有限,范围小。二是认为微商一般是私人交易行为,与大型电子商务购物平台对比,交易流程等不够规范。三是法律适用不足,到目前为止,我国仍然没有一部专门应对电子商务的人大立法,只有国家工商行政管理总局出台的《网络交易管理办法》,其性质属于部门规章。但是仅有的一部部门规章对微商的规定不足,这就导致微商交易问题在法律规范中难以适用。四是行政监管部门的不作为,抓大放小。对于微商的行政监管来说,具有现实存在的难度,但是对微商服务平台的主体责任没有明确,就更加不能履行对微商的正常监管职责。我国微商日益突显的问题众多。首先是我国立法方面的不足;其次是商品监管主体存在执法困难;再次是微商的税收征收制度不完善;最后是微商广告发布的乱象以及监管问题。监管不在于把市场牢牢的控制住,成为市场的咽喉,而是成为推动市场完善的助力者。监管作为市场运行的润滑剂,其作用就是保持市场运行的更加通畅和高效。微商的监管也是如此,要多管齐下,方能推动微商的长足发展。首先要推动我国的电子商务的立法完善,这是规范新市场交易的前提条件,无规矩不成方圆;其次是规范微商社交平台的主体职责,完善信息登记制度和管理模式;最后针对性解决微商广告发布,建立规范的广告发布流程。完善我国电子税务系统,实现电子发票登记和电子电报功能。加强管控机制,防止微商代理下的新型传销活动。
[Abstract]:The derivative started in 2012 and has begun to take shape now. But then there are more problems: false advertising, serious quality problems, consumer complaints, market regulatory gaps, and so on. At this point, we can not help but ask what is a derivative? What is the nature of derivative? Why would the administration ignore it? The legitimate rights and interests of consumers should be protected by He Ru? This is a series of problems that need to be solved in front of us. The definition of derivative quotient can be distinguished from two aspects: broad sense and narrow sense. In a narrow sense, derivative quotient only refers to the provision of commodity trading activities based on WeChat platform. In a broad sense, derivative quotient generally refers to enterprises or individuals relying on various social platforms to make use of various means of promotion. The provision of goods and services and other business activities. The legal nature of the derivative has been questioned. On the one hand, the mode of operation of the derivative may give rise to some problems, such as organizing pyramid selling activities; on the other hand, the consumers' association does not recognize that the derivative does not have the principal qualification of the operator. It's just "casual trading". The reasons are as follows: first, it is difficult to distinguish between the micro business operators and the ordinary users of the social platform, and the advertising is also arbitrary, and the advertising audience is limited and the scope is small. The other is that the micro-business is generally a private transaction behavior, compared with the large-scale e-commerce shopping platform, the transaction flow is not standard enough. Third, the application of the law is insufficient, so far, our country still does not have a special legislation to deal with e-commerce, only the State Administration for Industry and Commerce issued the "Network transaction Management measures", its nature belongs to the departmental regulations. However, there is only one department regulation on derivative, which leads to the problem of derivative trading difficult to apply in the legal norms. Fourth, the administrative regulatory department of inaction, grasp the small. For the administrative supervision of the derivative, it is difficult to exist in reality, but if the main responsibility of the platform is not clear, it will not be able to perform the normal supervision duty of the derivative. There are a lot of problems about derivative quotient in our country. The first is the lack of legislation in our country; the second is the difficulty of enforcing the law in the subject of commodity supervision; the third is the imperfect tax collection system of the derivative; the last is the confusion and supervision of the publication of the advertising of the derivative. Regulation is not to keep the market firmly under control and become the throat of the market, but to become the promoter of market perfection. Regulation as the lubricant of market operation, its function is to keep the market running more smooth and efficient. The same is true of derivative regulation, so it is necessary to push forward the development of derivative business in a multi-pronged manner. First of all, it is necessary to promote the legislative perfection of e-commerce in China, which is the precondition of standardizing the transaction in the new market, with no rules and no rules, and secondly, standardizing the main duties of the micro-business social platform and perfecting the information registration system and management mode. Finally, the targeted solution to the issue of micro-business advertising, the establishment of a standardized advertising process. Perfect our country electronic tax system, realize electronic invoice register and electronic telegram function. Strengthen the control mechanism to prevent the new type of pyramid selling activities under the micro-agent.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294

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