微商主体的类型化与主体行为的二元化——兼论对微商主体与行为的法律规制

Types of We-business Owners and the Duality in Their Activities:Focusing on the Legal Regulation of We-business Owners and Their Activities

从法律角度定义微商,最主要的是要揭示微商在法律关系中的定位和性质。微商的出现是对传统商事活动的挑战,是对“熟人社会”信用的悖论,是对商事活动形态的偏移,也是对商主体和商行为内涵的扩张。对微商的法律规制,首先,必须在对主体进行类型化分析的基础上,准确厘定平台主体与经营者主体的分野与构成,根据平台性质、主体类型与场域功能的不同,在商事登记、平台规则、法律责任等方面分别加以规制;其次,必须解构主体行为的二元化,对主体的交易行为和广告宣传行为,特别是对微商在社交媒体平台上的广告宣传行为加以特别的规制。在肯定微商推动经济发展作用的基础上,进一步完善商法,维护微商交易安全,确保交易秩序稳定。

The most importance issue in delimiting“we business”(i.e.business based on social media)from a legal perspective is to define its position and identify its characteristics in the framework of legal relationships.The emergence of social media-based we business is a challenge to the traditional business modes;a reaction against the credit system possessed by a so-called“acquaintance society”;a deviation from the traditional form of business activities;and an extension of the conventional categories of business activities and business people.In order to establish an effective legal system governing business activities based on social media,firstly,we have to clearly differentiate the platform providers from the we business owners through developing a clear picture of the differences in their characteristics and types,and implement corresponding regulations over their activities in such aspects as business registration,platform operation,and liability.Secondly,we have to differentiate transaction activities from sales promotion in dealing with the we business activities based on social media,and impose a specific regulation over the advertising activities.On the basis of acknowledging the contribution to economic development made by social media-based we business,we need to further improve the commercial law,safeguard the security in social media-based we business and ensure a stable order in this field.