first, the current situation of investigating and dealing with network illegal cases
The State Administration for Industry and Commerce and local industrial and commercial bureaus attach great importance to the exploration of network supervision. The Shanghai Industrial and Commercial Bureau has put network supervision into practice and investigated and dealt with a number of network illegal cases. As of January 21, Shanghai Industrial and Commercial Bureau * * * ordered 23 cases of network violations to be corrected, and 1 cases were put on file for investigation. It is estimated that more than 1 cases will be investigated and dealt with in 21.
According to the investigation practice of online cases and the sampling inspection of websites of Shanghai Administration for Industry and Commerce, there are mainly the following types of online violations: (1) False propaganda. Including the false propaganda of online business enterprises themselves and the goods sold online and providing media (network) for false propaganda. (2) operating without a license. Including selling goods online, providing services and providing conditions for unlicensed operation without industrial and commercial registration (network platform). (3) Using network marketing and disguised marketing. (4) using the Internet to smuggle goods. (5) Infringement of consumers' rights and interests. Infringe on consumers' rights and interests in the form of online distribution of counterfeit and shoddy goods and violation of contract format clauses. (6) unfair competition. Online counterfeiting of registered trademarks of others, etc. (7) Beyond the business scope. Special industries licensed by the state engage in business without permission. In February, 21, Shanghai Administration for Industry and Commerce conducted a random sampling inspection of 5 commercial websites, of which 32 were suspected to be illegal and 41 were suspected to be illegal. Among all kinds of network violations, false propaganda and unlicensed operation are the most common, accounting for about 5%; Online pyramid schemes account for 2%.
due to the virtual nature of the network itself, borderless and cross-border, and the renovation of illegal means, the investigation of network illegal cases is facing unprecedented difficulties and challenges, which runs through all aspects of law enforcement and objectively restricts the exercise of network supervision functions of industrial and commercial administrative departments.
2. Difficulties in investigating and handling illegal cases on the Internet
1. Illegal jurisdiction is difficult to determine. According to Article 2 of the Administrative Punishment Law and Article 4 of the Interim Provisions on Administrative Punishment Procedures for Industry and Commerce, administrative punishment shall be under the jurisdiction of the place where the illegal act occurred. However, the internet has no boundaries, and anyone who browses online may be a victim of illegal activities. Illegal propaganda content can be seen anywhere with access to the internet. Is it true that all places with access to the internet are places where illegal activities occur, and all online illegal activities can be under jurisdiction? Obviously, it is not reasonable, and it is easy to have regional conflicts of jurisdiction, and it is easy to have the same illegal act that everyone cares or everyone cares.
what is more troublesome is that the illegal act may involve multiple countries, which may be legal in country A but illegal in country B .. For example, in China, Singapore and many other countries, pyramid selling is prohibited, while in the United States, Taiwan Province and other countries and regions, pyramid selling is allowed. If someone sets up a website in a place where pyramid selling is allowed, do all countries that prohibit pyramid selling have the right to exercise jurisdiction over this behavior? In fact, at present, foreign MLM activities have penetrated into China through the Internet. For example, "American Air Commerce Network" has developed offline MLM network information space in Shanghai, Henan and other places. How do we determine the jurisdiction over this? How to achieve jurisdiction?
2. Online evidence is difficult to identify. The key to investigate and deal with violations lies in the identification of evidence. How to determine the probative power of online electronic evidence itself and the legitimacy of evidence collection procedures has encountered difficulties in reality. (1) There are doubts about the authenticity of online evidence. Online electronic documents can be modified at will, leaving no trace, can be forged at will, and it is difficult to distinguish authenticity. How to make sure that the evidence is true and reliable? How much evidence is "true and sufficient"? (2) The probative power of online evidence is controversial. Although the United Nations Model Law on Electronic Commerce stipulates that a certain information should not be denied its legal effect just because it is in the form of a data message; Information in the form of data messages should be given due evidential force. There are similar provisions in the laws of the United States, Singapore and other countries. But so far, there is no law in our country that expressly stipulates this. (3) Electronic evidence is easily lost and non-renewable. Once an illegal case is committed, the parties may delete the illegal content online. If the evidence is not kept in time, it will be lost forever, and the parties can completely deny the illegal facts.
3. The legal basis is hard to find. At present, there are no laws and regulations on industrial and commercial administration specifically for the network in China. However, due to the particularity of network operation behavior, some provisions of existing laws can not fully meet the objective needs of network law enforcement.
in law enforcement, we encountered a case: a website arbitrarily marked other people's display product drawings online as products of other brands for sale. As far as social harmfulness is concerned, this is undoubtedly unfair competition, but it is difficult to find accurate and applicable provisions from the Competition Law anyway, and it will undoubtedly be illegal if it is not investigated. If it is a misleading false propaganda of goods, it is not the goods themselves, but only the virtual image on the internet; If it is said that the unique packaging and decoration of well-known goods are used without authorization, can the online sample pattern be regarded as the packaging and decoration of goods? At present, a case of a company forging a copy of its business license (online version) has also been found. How to apply the law? Although the Shanghai Administration for Industry and Commerce promulgated the Trial Measures for the Management of Shanghai Business License Copy (Online Edition), it is only a normative document and cannot be used as a basis for law enforcement. If the provision of forging business license in Article 69 of the Regulations on the Administration of Company Registration applies, does the "business license" referred to in the Regulations include a copy of the business license (online version)?
in addition, does counterfeiting the website name of an enterprise infringe on the exclusive right of the enterprise's name? (For example, Jinan "Dongfang Net" station uses the name of Shanghai "Dongfang Net" without authorization); Does the use of a domain name similar to a well-known domain name constitute the counterfeiting of the unique name of a well-known commodity? (For example, eastdays.com of Jinan Oriental Network and eastday.com of Shanghai Oriental Network); Does it constitute unfair competition to use the online logo of someone else's unregistered trademark as your own online logo? ..... Now there is no explicit provision in the law, and there are disputes in practice, which brings difficulties to administration according to law.
4. It is difficult to investigate the illegal responsibility. (1) The responsible person is hard to find. In the virtual space of the network, the offender may be a virtual subject. How to identify the person responsible for the violation? Online often does not disclose the address of the operator, or provides a false address, how to find the person responsible for the violation? (2) Administrative punishment is difficult to implement. Some offenders are far away from home. If the parties do not cooperate, it will be difficult to implement and the cost will be too high. Some are leather bag companies. After the accident, people go to the building and have no ability to take responsibility. The punishment decision may become a dead letter.
5. Law enforcement means are difficult to reach the designated position. (1) Hardware facilities are not in place. To investigate and deal with network violations, it is necessary to have a computer with internet access, but some grass-roots law enforcement units do not have the conditions. (2) The investigation institution is not in place. Generally, the industrial and commercial bureaus don't have a special organization to regulate online transactions, a department to investigate and deal with online violations, and a set of clear measures and methods, so that industrial and commercial cadres don't know where to start. (3) The quality of personnel is not in place. Many industrial and commercial law enforcement officers have never been online, do not know what the internet is, do not understand the characteristics and current situation of network operation, and have no ability to investigate and deal with online violations.
iii. countermeasures for investigating and handling network illegal cases
in view of the above problems, we can solve the problems in investigating and handling network illegal cases from five aspects. 1. Illegal jurisdiction: the offender's place is the principle and the victim's place is the supplement. In terms of geographical jurisdiction, as mentioned above, in theory, any place may be the place where the network violates the law, but all online business activities cannot be separated from the location of the parties (the place of registration or the actual place of business). From the point of view of facilitating the search for the parties and the execution of punishment, the location of the offender should be the principle of jurisdiction. Law enforcement practice is also basically like some operations. For cases that cause damage to others and are reported by someone, the victim's location can be regarded as the place where the illegal act is committed, and it can be under the jurisdiction of the victim's location, so as to effectively protect the interests of the victim. In terms of level jurisdiction, big cities with relatively popular Internet are under the jurisdiction of district-level industrial and commercial bureaus, and areas with poor Internet access can be directly under the jurisdiction of provincial and municipal industrial and commercial bureaus. In terms of foreign jurisdiction, China should have jurisdiction over all online business activities that violate the public order and cause serious harm to China. In actual jurisdiction, if foreign offenders have offices in China and executable property, they will try their best to take compulsory measures according to the regulations; In the case that it is difficult to exercise jurisdiction over foreign parties, domestic network service providers can be ordered to stop accessing network information containing illegal content according to law. In the case of general violations of the law, we should ignore them, consider the legal conflicts and practical feasibility of various countries, and selectively exercise jurisdiction.
2. evidence collection: keep the evidence in time and confirm the evidence with each other. Because there are many disputes about the probative force of online evidence, notarization is adopted in judicial practice to clarify its evidential effect. Some people in the administrative department for industry and commerce have also made this suggestion. However, the number of network illegal cases is increasing day by day, and the notarization of large and small evidence is not only unrealistic, but also greatly increases the cost of law enforcement, which is unbearable for law enforcement agencies. A simpler and more feasible method should be adopted to collect and confirm online illegal evidence. (1) Ideally, referring to the United Nations Model Law on Electronic Commerce and the legislative practice of various countries, the evidence force of electronic data will be confirmed by legislation in the forthcoming Evidence Law. (2) In order to avoid the loss of evidence and find that it is illegal, the evidence should be saved in the form of online download and printing, paper backup, etc. (3) At present, there is no law to clarify the effectiveness of online evidence, so we can try to download evidence from the Internet in front of the parties, ask them to sign and seal the materials printed online on the spot for confirmation, and further confirm the facts in the downloaded materials in written form of inquiry notes, so that the parties can't deny it with the authenticity and evidential force of the evidence. (4) Set up the center's EDI service center. At present, a number of EDI centers have been established in Shanghai, Beijing, Guangzhou and other places. We can learn from Guangdong's practice and require EDI centers to record the documents received and extracted, and keep the relevant electronic messages for more than five years. If necessary, we can directly extract information from the centers as evidence.
3. application of law: strengthen the interpretation of law enforcement and make up for the legislative gap. (1) general network violations, directly applicable to existing laws and regulations. The network is just a carrier, and the essence of online behavior is also business behavior, which is also within the scope of existing legal adjustment. The existing laws and regulations can be directly applied to the investigation and punishment of most online violations. Such as illegal advertisements and false propaganda on the Internet, the Advertising Law, the Anti-Unfair Competition Law and other regulations can be applied, while online unlicensed operation can be applied to the Regulations on the Administration of Company Registration and the Regulations on the Administration of Enterprise Legal Person Registration, and online sales of counterfeit and shoddy goods and smuggled goods can be directly applied to the relevant provisions of the Trademark Law, the Anti-Unfair Competition Law and the Interim Regulations on Combating Speculation and Administrative Punishment. (2) The interpretation of law enforcement can be strengthened if there is no explicit provision in the existing laws, and the application scope of relevant provisions can be extended by applying the principle of "analogy". If the "business license" stipulated in the Regulations on the Administration of Company Registration can be interpreted as a business license in any medium or form, it can be concluded that forging an online copy of the business license is an act of forging a business license and will be investigated and dealt with according to law. Of course, when making the above explanation, it should be reported to the higher authorities with the right to interpret for approval as required. (3) For the new situation in the network, laws should be formulated or amended to fill the legislative gap. The Trademark Law and the Anti-Unfair Competition Law can be amended to clearly stipulate that the registered trademarks, product images of others or the unique names, packages and decorations of well-known commodities shall not be used as the names, online logos or images and decorations of online samples of their own websites; It can be stipulated that it is unfair competition to use words or symbols that are the same as or similar to other people's registered trademarks, enterprise names and well-known websites as their own domain names, and to use words or symbols that are similar to other people's well-known domain names and misleading enough as their own domain names; Legislation can be made to make it clear that unfair competition is not allowed by modifying network software programs, intercepting and deciphering online documents and other traders' passwords; Add regulations on e-mail advertising and online consumer privacy protection. Only in this way can there be laws to follow and offenders be punished as they deserve.
4. Responsibility investigation: open your identity online and clarify the responsibility of the website. The biggest problem in investigating online illegal responsibility is that the illegal subject can't be found in the virtual space. Therefore, it is necessary to learn from foreign practices and establish two legal systems based on China's reality: (1) Online public identity system. Operators are generally required to disclose their true identities on the Internet. The OECD Guidelines on Consumer Protection in E-commerce stipulates: "Enterprises should not use the characteristics of e-commerce to conceal their true identity or address." The EU E-commerce Directive stipulates that (network) service providers should disclose information such as the name, physical address, effective contact information, business registration institution and registration number of service providers. Our country can extend the regulations of "Regulations on the Administration of Company Registration" and other laws and regulations requiring enterprises to hang their business licenses to the Internet. It is suggested that legislation should explicitly require all operators who sell goods or provide services online to provide their real name, registration number, actual address, contact information and other identity information online, so that online operators can go from behind the scenes to the front of the screen, from virtual to reality, and those responsible can be found out if there is a problem. Shanghai has promulgated the "Trial Measures for the Management of Shanghai Business License Copy (Online Edition)", which requires online operators to handle and disclose the contents of their online business licenses, and has made positive attempts in this regard. (2) Responsibility system for website operators: Countries do not tend to impose excessive responsibilities on website operators, but it does not rule out that they should bear certain responsibilities. Based on the fact that internet violations are common in China, we believe that website operators provide carriers for online violations, charge service fees, have access to online operators and have the opportunity to know the truth, so they should take care of the relevant matters they can control. It is suggested that legislation should clearly stipulate the obligations of website operators: the obligation to review the identity of operators (business licenses and other certificates) with the help of their online platforms; The obligation to be responsible for the legality and authenticity of the information directly released by it; The obligation to provide the law enforcement department with the identity materials of the illegal subject and take appropriate measures when it is found illegal. Directly stipulate the legal responsibilities of website operators for failing to fulfill their obligations, so as to promote the self-discipline management of website operators, prevent problems before they happen, and also help to find the person responsible for violations. At present, in the absence of explicit provisions on the responsibility of website operators, the responsibility of website operators can be directly investigated according to the existing provisions such as the responsibility of illegal advertisers in the Advertising Law and the provision of convenient conditions for speculation in the Provisional Regulations on Administrative Punishment of Speculation.
5. Law enforcement team: set up special institutions to improve the quality of personnel. (1) The supervision of network business behavior is professional and demanding, and the original economic inspection agencies can no longer fully adapt. The Ministry of Public Security has set up a "network police", and the industry and commerce should also set up a special network law enforcement team to comprehensively supervise e-commerce and investigate and deal with network violations. and