网络直播消费纠纷中直播间运营者的责任认定

Determination of Liability of Live-Streaming Operators in Live-Streaming Consumer Disputes

摘要: 互联网+新零售时代，搭建了网络直播这一新型消费场景，场内消费繁荣，场外纠纷频发，根据传统线下消费场景制定的买卖合同相关法律规定及理论一时已难以满足这一新型消费纠纷主体多样性、场景虚拟性、交易高频性、合意时效性等特征。谁对消费者负责？是主播？是直播间运营者？还是商品经营者？直播间运营者究竟是销售商还是广告商？据此《最高人民法院关于审理网络消费纠纷案件适用法律若干问题的规定(一)》(征求意见稿)第十五条提供了两个认定直播间运营者责任的方案，一是由直播间运营者承担商品销售责任，自证清白；二是以直播间运营者是否提供商品链接供消费者直接点击购买为区分标志，提供商品购买链接的直播间运营者承担商品销售责任，反之承担广告责任。笔者以法律适用、消费者权益保护、直播业发展为视角综合考量，方案二的证明标准更为明确、更便于法律适用，不仅符合保护消费者的立法价值取向，也符合直播行业的商业现状和行业发展需要。

Abstract: The Internet + new retail era has built a new type of consumer scene of webcasting, with prosperous onsite consumption and frequent offsite disputes. The legal provisions and theories related to the sale and purchase contract formulated according to the traditional offline consumption scene have been difficult to meet the characteristics of this new type of consumer dispute such as subject diversity, scene virtualization, high frequency of transaction, and consensual timeliness. Who is responsible for consumers? Is it the anchor? Is it the operator of the live broadcast room? Or is it the operator of the product? Is the operator of the live broadcast room a seller or an advertiser? Accordingly, Article 15 of the “Supreme People’s Court Provisions on Several Issues Concerning the Application of Law to the Trial of Online Consumer Disputes (I)” (draft for public comment) provides two options for determining the liability of live-streaming operators: one is for the live-streaming operator to assume responsibility for the sale of goods and to prove its own innocence; the other is to distinguish whether the live-streaming operator provides links to goods for consumers to click directly to purchase, and to provide links to purchase goods. The operator of the live broadcast room will be responsible for the sale of goods and vice versa for advertising. The author to the application of the law, consumer protection, live industry development as a comprehensive perspective, the proof of the second standard is more clear, more convenient for legal application, not only in line with the protection of consumer legislative value orientation, but also in line with the live industry's business status and industry development needs.