The legal hidden danger of overseas purchasing industry chain

There is no doubt that the current overseas purchasing in China has a very mature industrial chain, the domestic large-scale E-commerce trading platform and in recent years a lot of luxury sites have been linked to overseas purchasing. Here to reveal this huge industrial chain behind the legal hidden dangers.

According to the relevant information, so far overseas purchase market transaction size reached 20.6 billion yuan, the forecast can reach 24.1 billion yuan at the end of the year. In the next year, the transaction size of overseas purchasing will reach 48 billion yuan. Statistics also show that in the overseas purchase of the most popular commodity category, the first three is cosmetics, milk powder and bags, the next is clothing accessories, electronic products.

China's existing large-scale e-commerce trading platform and a large number of emerging luxury sites in recent years, almost all with overseas purchasing has a close relationship.

Behind such a huge industrial chain, what is the legal relationship between the parties concerned? Which of these hidden legal problems? What are the legal risks faced by buyers and third party platforms and how to apply them to the greatest extent possible? This article tries to give the answer, at the same time, first of all to clarify the basic concept of several overseas purchasing.

What is the overseas purchasing?

Overseas purchasing is not a term with a defined concept, but a cross-border goods and services Transaction mode which is completed by the buyers, purchasers and sellers. The main reasons for the formation of overseas purchasing industry are two, one is domestic and foreign goods and services based on tariffs, domestic value-added tax, business tax, consumption tax, testing and testing costs, and other factors caused by the difference, one is part of the goods and service types in the scarcity of the territory.

Generally speaking, the sourcing of overseas purchasing has three kinds of channels, the first is through the normal cargo transport. Affected by the 2010 tariff adjustment, small foreign trade companies or individuals began to choose through Alibaba or Dunhuang network E-commerce platform or logistics companies, the use of intensive way to import and export formalities of goods to concentrate on customs declaration.

For example, Alibaba on the 1000 small foreign trade companies or personal foreign trade providers, through the foreign trade service providers can concentrate on import and export formalities, 1000 yuan in foreign trade service fees by the 1000 companies, the price is very low.

The second type is sent by private parcel post.

The third is the personal carry out customs clearance (more for a variety of "water passenger" with goods).

Understand the source of supply channels, can basically get the price of overseas purchases of goods, that is, the cost of the product, shopping consumption tax and international and domestic transportation (including tariffs) three components.

There are two main ways to purchase overseas, one kind is the personal purchase, including the acquaintance overseas purchase and the occupation personal purchase, mainly is through entrusts the private way to carry on the overseas purchase, another kind is the professional purchase platform, also calls the official purchase, refers to through establishes the relatively stable and the legal organization mechanism to carry out the overseas purchasing business.

Of course, in many cases, the difference between the two is not obvious, especially in the former way a large number of private purchasing in the latter way through the third party platform to carry out business. Typical purchase platform such as ebay purchase platform, Amoy Japan, Taobao Global purchase, help buy nets, the United States Shopping Network, in addition to the emergence of a large number of luxury sites this year, many are also through purchasing to obtain sourcing.

Four legal issues

(i) Tariff

Tariff is one of the important reasons for the existence of purchasing industry, a large number of purchasing through the way of subcontracting and personal carrying customs clearance, evade the imposition of tariffs, the impact on the tax is very large.

In response to this situation, the general administration of customs in 2010 issued a series of two targeted documents, one is the general administration of Customs Notice 2010 43rd, "on the adjustment of turnover of personal postal goods management measures related matters", reducing the personal mailing of imported goods tax exemption standard, stipulates that the import duty tax in RMB 50 yuan (including 50 yuan) below, the customs exemption, and before the import duty tax is within 500 yuan, the customs to exempt.

The other is the general administration of Customs 54th "on the entry of passengers with personal use of imported goods tax provisions", specifically in the total value of 5000 yuan, the customs duty-free release, more than 5000 yuan for personal use of imported goods, by the Customs audit is for their own use, The Customs shall only levy taxes on the imported goods of the individuals who have exceeded them, and shall levy a full tax on the indivisible items.

The above two documents respectively for the overseas purchase link in the mail and the private carry, the tax standard has become stricter, has strengthened the supervision in the implementation link, therefore has the big impact to the overseas purchasing profession.

After the introduction of the document, many purchasing agents have chosen to entrust Third-party foreign trade service providers to adopt a peers approach to focus on customs declaration, and then the cost of diluted to consumers.

(ii) Administrative supervision

Some types of commodities have special properties because of health, health and other factors, and there is a certain degree of control over the circulation of such goods in the country, especially through the implementation of licensing systems in the areas of production, import and marketing. To overseas purchasing the largest proportion of cosmetics as an example, cosmetic security problems mainly manifested in the use of banned raw materials, microbial contamination, there are allergic substances and other aspects. China's regulations on the import and circulation of cosmetics mainly include:

Cosmetics Hygiene Supervision Regulation stipulates: Import cosmetics shall be approved by the Health Administrative Department of the State Council.

2004 Notice of the Ministry of Health on simplifying the procedures for the sanitary licensing of imported non-special-purpose Cosmetics (2004]217) stipulates: Since August 1, 2004, the import of special-purpose cosmetics for the record management; In addition, for the import of special-purpose cosmetics need to apply for permission. It is worth mentioning that the Ministry of Health to apply for the filing of the import of special-purpose cosmetics do not organize technical review, production and import units on the record of the quality of products and safety of the full responsibility, for special-purpose cosmetics organizations relevant experts and technicians on the application materials for technical review, The Ministry of Health receives the conclusion of the technical review and makes an administrative review to make the decision on whether to approve the health administrative license.

Cosmetics distributor distribution without the approval of the Ministry of Health imports of cosmetics, in accordance with the "Cosmetics Health Supervision Regulation 26th" to the dealer penalties.

It can be seen that for some categories of products, the relevant domestic departments of their import approval and illegal imports have stipulated corresponding measures, similar provisions and measures also apply to the field of food (milk powder). In addition, the clothing, electronic products and other commodity categories, although not set up a clear licensing system, however, it is not without the corresponding control measures, such as the product quality inspection certificate as stipulated in the product quality law and the Chinese marking, etc., as well as the standard of poisonous and harmful substances of electronic products stipulated in the Regulations on pollution control of electronic information products.

(iii) Intellectual property rights and parallel importation

The existence of overseas purchasing is a significant part of the reason is that genuine manufacturers in various countries to implement different pricing strategies, resulting in the same products at home and abroad price difference, and the foreign low-cost products in the form of purchasing to buy domestic sales on the issue of parallel import of intellectual property rights.

In short, China allows the parallel importation of patented products, but the trademark and copyright carrier products are allowed parallel imports, there is no express. Generally believed that the parallel importation of goods, if the product changes the original appearance or quality, resulting in lower product reputation or consumer misunderstanding, it should be recognized as infringement, otherwise should be in accordance with the principle of exhaustion of rights do not identify infringement.

From the current practice of overseas purchasing, based on domestic and foreign language, business environment and so on, the purchase of products with similar products in the domestic comparison, there is a certain difference in appearance, this difference once reached a certain degree may be prohibited by the court. In particular, the retention of intellectual property, in order to maintain the established price strategy, to achieve maximum benefits, it is possible to use intellectual property rights to the purchase of action to combat.

(iv) Consumer rights and interests

If there is a quality flaw in the purchase of goods, even damage to users, the actual buyer want to claim compensation for overseas retailers, there are two major obstacles, that is, the application of the law and the relativity of the contract.

As far as the application of law is concerned, such as the purchase contract between the nominal purchaser and the overseas retailer in Hong Kong, the local law of Hong Kong may be applied, and the damage occurs in the mainland, and the contract law and the Consumer Protection law may be applied to the issue of conflict of law application.

In addition, if the contract law is to be invoked, the nominal purchaser is the party to the contract, the actual purchaser directly sues the retailer for default, and the plaintiff's identity is challenged in view of the relativity of the contract.

Legal risks for buyers and platforms

The risk of the shopper

There is a view in the country that the composition of the legal relationship of purchasing includes:

The principal contract relationship between the actual purchaser and the nominal purchaser (purchasing person), the content of which is the purchase of the specified commodity;

The contract of sale between the nominal purchaser and the commodity seller.

But in fact, buyers and purchasers are not entirely "contract law" in the sense of the "trustee should be in accordance with the instructions of the principal to deal with the entrusted affairs" of the contract relationship, because most of the buyers are first to their purchase of the content to be displayed and publicity, by the purchaser after the choice of purchasing, Not from the outset, according to the purchaser's instructions, this business model is not materially different from importers ' imports to domestic sales.

So my point of view is that overseas purchasing is two contract relationships.

Based on this premise, the purchaser, as the seller, will face all potential legal risks in the foregoing analysis, including tax, administrative supervision, intellectual property rights and consumer rights.

Risk of Third-party Purchasing platform

The third party purchasing platform here refers to providing technical platform support only for purchasing behavior, not participating in actual purchasing or sharing the benefit platform. Such platform domestic law does not require it to undertake product review obligations in advance, but should establish the user real name record, the consumer safeguard, the tort treatment and so on a series of systems, especially after receiving the right person's complaint, should take the necessary measure in time, otherwise should undertake the joint and several legal liability to the infringement behavior and the actual infringer.

News Link: Japan Meiji milk powder for the detection of radioactive cesium, its company announced the recall of 400,000 cans of infant formula for free replacement, but the domestic purchase through purchasing the Meiji milk not recall. Taobao staff told reporters that the current Taobao has put all the Japanese Meiji milk powder, and to the local industry and commerce, food regulatory authorities to prepare for processing notice. (Source: Nanjing daily)

Of course, the future also does not rule out legislation or administrative agencies to introduce new norms, the purchase of the platform directly to the purchase of products or services in a certain feature or qualification directly bear the obligation of prior review, this platform should pay close attention to the legislative trend.

Summary: The value of network regulation

NET regulation means "under the current legal framework, the autonomous code of Conduct which is developed and implemented by the main body of equal e-commerce to adjust the relationship between the e-business and its mutual electronic commerce (see the author's article" The Generation and design of the Network Regulation "), its main performance is the user protocol and the platform rule that the platform makes. In the case that the current law is not clear enough, the platform provider should actively formulate and refine the relevant rules, adjust the behavior of the parties, and at the same time, to the maximum extent to protect themselves under the protection of the safe haven.

Of course, in judicial practice, the right person often advocates that the network regulation is made by the platform and lacks the legal effect. The author thinks that the network regulation can be increased to the industry or national standards, so that it satisfies the legality while it is conducive to the platform provider controllable way to implement the operation, management.