论网络直播用户与主播之间的法律关系属性

The Nature of Legal Relationship between a Live-streaming User and the Streamer

网络直播用户与主播之间是否具有法律关系、具有什么法律关系,在理论界和实务界都有很大争议,严重影响当事人利益和诉讼走向。平台网络服务合同不足以调整打赏行为,其无法回避主播的独立地位,而用户与主播之间的法律关系具有现实和法律基础,因为虚拟道具财产利益的变动需要产权规则的调整,并且用户的意思表示是指向主播的。对价是影响打赏合同属性的关键因素,核心是判断是否存在增值服务,用户的参与感可以作为重要参考。当用户与主播约定增值服务时,就等于约定了打赏的对价,打赏合同就属于服务合同。当用户与主播并未约定增值服务时,打赏并不存在对价,打赏合同就属于赠与合同。

Whether or not there is a legal relationship between a live-streaming user and the streamer,and what kind of such legal relationship it is,is highly controversial in both theoretical and practical circles,which seriously affects the interests of parties and the direction of litigation.The platform network service contract is not enough to adjust the rewarding behavior,in which the independent status of the streamer cannot be avoided,and the legal relationship between a user and the streamer has a realistic and legal basis,because the change of the property interests of the virtual props calls for the governing by rules on the property rights,and the user’s expression of intention is directed at the streamer.Consideration is a key factor affecting the attribute of the rewarding contract,and the core is to determine whether there is a value-added service,and the user’s sense of participation can be used as an important reference.When the user and the streamer agree on value-added services,such agreement is equivalent to the agreed consideration for rewarding,and the rewarding contract belongs to the service contract.When the user and the streamer have not agreed on value-added services,and there is no consideration for the rewarding,the rewarding contract is a donation contract.