The most frequently encountered problem recently is: if digital collections open a secondary market, if they are shut down due to policy reasons, resulting in thunderstorms, what legal responsibilities do business leaders and executives have? The development and elimination of the P2P online lending platform is indeed a lesson from the past. It is worth exploring where the future supervision and judicial disposal of the digital Tibetan platform will go.
Closing the “Level 2” for policy reasons is a situation change
Generally speaking, the application of the “change of circumstances” provisions shall meet the following conditions : 1. The objective situation as the basis of the contract has undergone significant changes; 2. The change of circumstances must occur after the establishment of the contract and before the completion of the performance; 3. The change of circumstances must occur It cannot be attributable to the parties; 4. The change of circumstances must be unforeseeable by the parties at the time of the conclusion of the contract;
Circumstances where the contract cannot be performed due to policy adjustments shall be classified as “change of circumstances” . Article 533 of my country’s Civil Code stipulates: “After the establishment of the contract, the basic conditions of the contract have undergone major changes that cannot be foreseen by the parties at the time of entering into the contract and are not commercial risks, and it is obviously unfair to one of the parties to continue to perform the contract. The parties that are adversely affected may renegotiate with the other party; if the negotiation fails within a reasonable period of time, the parties may request the people’s court or arbitration institution to modify or rescind the contract.”
At the same time, the Supreme People’s Court pointed out in [(2015) Min Ti Zi No. 39)] that if it is true that due to the adjustment of government policies, the contract cannot continue to be performed or the purpose of the contract cannot be achieved, it is of course an objective situation beyond the will of the contracting parties. The changed circumstances shall be deemed to be a change of circumstances, and no compensation shall be made for the benefits available .
Therefore, the closure of the “Secondary” platform due to policy reasons should be regarded as a change of situation. However, if the contract is terminated due to a change of circumstances, it does not mean that the parties do not need to bear any responsibility. In practice, when a policy is adjusted to terminate a contract, the court will usually determine whether to modify or terminate the contract according to the terms of the change of circumstances and the principle of fairness, combined with the actual situation of the case. Specific considerations include: the actual impact of the policy adjustment on the contract performance environment, The parties shall compensate for whether the policy adjustment is predictable, and whether the commercial risks brought about by the policy adjustment can be prevented and controlled, etc., and shall be compensated in accordance with the filling-in rules, but shall not be compensated for the available benefits. Therefore, for the users of the digital collection platform, if the user intends to obtain higher benefits after buying at a high price in the secondary market, it is not within the scope of compensation , and since the user has obtained the corresponding digital collection, it is difficult to determine that there is property. loss.
National policies are often continuous and continuous, and are not always unpredictable. In order to gain a favorable position in the process of resolving contract disputes, the data collection platform should actively collect relevant evidence before closing the “level 2” to prove its understanding of the policy trend when the contract is signed. In addition, if the parties have agreed in the contract on the risk burden of a situation that may occur in the future, or divided the risk burden of the contract by means of contract interpretation, the court will generally give priority to the contract agreement or contract interpretation, rather than the change of situation clause. adjust .
Will it be “one size fits all” for opening the second level?
To tell the truth, it is difficult to prove whether the relationship between opening the second level and hype is a causal relationship, but one thing can be confirmed: there is a strong correlation between the two. That is to say, it is difficult to carry out large-scale, high “price-earnings ratio” hype without secondary .
From the perspective of refined governance, the best way is to analyze the actual situation of each platform, and then prescribe the right medicine, and each regulatory agency will conduct segmented and classified governance. However,from the perspective of efficiency priority, one-size-fits-all is the best choice to quickly and efficiently “cut” legal risks . So, whether or not to take a one-size-fits-all approach depends on what factors? Ms. Sa thinks:
Is it one size fits all, depending on what factors?
(1) How big is the social value (positive value) of digital collections?
(2) Multiple management, internal coordination costs between various regulatory departments;
(3) The proportion of hype people among consumers;
(4) Media reports on crisis events in the Tibetan industry;
(5) Black swan events, such as occasional “self-injury suicide” cases;
(6) Development and changes of other policy situations.
In order to solve the problem of the data collection industry, we still need to solve an old problem: what is the real use value of NFT? Through the construction of Metaverse City, NFTs, as infrastructure, will be scattered in the Metaverse “prisms” of various manufacturers, combined with the game industry, with the virtual human industry, with live streaming, and with online education. Combined with the sales incentives of the real economy (refer to a certain snow’s tea), only when consumers buy NFTs not to earn excess profits – high premiums, can the NFT industry itself have a relatively solid living space. If there continues to be “bad money drives out good money” and human greed is used as the underlying logic of transactions, then the thunder for the NFT data collection industry will be on the horizon .
“Secondary” consignment platform owners and executives need to pay attention
What are the compliance points?
As mentioned above, the relationship between opening the second level and hype has not been clarified, but it cannot be said that opening the second level will inevitably lead to speculation, or that speculation will inevitably lead to the opening of the second level . However, it is worth noting that in the actual operation process of the enterprise, opening a second-level often inevitably causes some people to hype, and once the hype is too much, it will attract the attention of the regulatory authorities, and thus the “second-level” consignment platform and Its bosses and executives bring unnecessary risks. Therefore, in this case, even if the final treatment of “secondary” will not be “one size fits all”, for platforms that have developed or intend to develop the “secondary” market, they still have to strictly control their own compliance construction. Only by doing a good job of compliance can we deal with various regulatory policies that may be possible in the future .
Specifically, for the bosses and executives of “secondary” consignment platforms, the main points of compliance are as follows:
Do not deceive users
Whether it is the crime of fraud stipulated in Article 266 of the Criminal Law or the crime of fund- raising fraudstipulated in Article 192 of the Criminal Law , they are all possible crimes in the “secondary” consignment market. One of the keys to the two crimes is that the perpetrator committed fraud, in other words, he took the method of fabricating facts and concealing the truth. Once the owner or executive of the platform adopts the above method in operating the platform, it is likely to fall into the criminal risk of fraud. This requires the platform to strictly review the commitments made to users when issuing relevant user agreements, relevant user instructions or privacy policies and other documentsto ensure that these commitments can be fulfilled within the legal scope , such as ensuring that the works are on the chain and that they should be The rights conferred to users are effectively given to users, and the authorization link of works is guaranteed to be complete, etc. Therefore, never deceiving users and never making easy promises is the key that bosses or executives must keep in mind when operating.
Never promise benefits
Inducement is one of the necessary elements to constitute an illegal fund-raising crime. Due to the characteristics of digital Tibetan platforms, openness and sociality are often easily satisfied, so illegality and enticing are the bottom lines that must be guarded. Regardless of whether the promise of the benefit is direct or indirect, express or implied, as long as it can be inferred from the objective behavior that the operator of the platform promises a certain benefit to the buyer, the requirement of inducement can be satisfied . Therefore, never promising returns is also key for bosses and executives to run the platform.
Do not increase the price of the primary market by speculating on the secondary market
In practice, there are many platforms that sell and buy by themselves, and even some platforms have their own hype or hire an external third-party team to hype and trade the digital collections issued by themselves on the secondary market. As a result, the sale price of digital collections in the primary market is artificially raised. At this time, this kind of behavior of the platform is misleading the judgment of consumers, and consumers are fraudulently consumedwhen purchasing digital collections in the primary market .
According to the relevant provisions of the “Consumer Rights Protection Law of the People’s Republic of China” and the “Punishment Measures for Infringement of Consumer Rights and Interests”, operators are expressly prohibited from: (1) using false “clearance prices”, “sale prices”, “lowest prices” , “preferential price” or other deceptive prices to indicate the sale of goods ; (2) employing others to induce deceptive sales ; (3) defrauding consumers by other false or improper means . Moreover, fraudulent acts by operators will generally cause damage to the legitimate rights and interests of consumers. This kind of damage does not mean that actual loss or damage is required, as long as the operator’s behavior is enough to mislead consumers by its nature, it can be identified as fraud.
It is judged to constitute consumer fraud on the platform. According to the “Punishment Measures for Infringement of Consumer Rights and Interests” and the provisions of Article 55 [punitive damages] of the “Consumer Rights Protection Law”: operators who provide goods or services have fraudulent behaviors. , should increase the compensation for the loss suffered by the consumer according to the request of the consumer, and the amount of the increased compensation shall be three times the price of the consumer’s purchase of the goods or the cost of receiving the service ; if the amount of the increased compensation is less than 500 yuan, it shall be 500 yuan. If the law provides otherwise, such provisions shall be followed. In addition, if the amount of fraud is huge or there are other particularly serious circumstances, it may also constitute the crime of fraud.
Do a good job in IP authorization review
Articles 213 to 220 of the Criminal Law stipulate the crimes of infringement of intellectual property rights. Among them, the crime of copyright infringement in Article 217 is most closely related to the “secondary” consignment platform . If the public disseminates its written works, music, art, audio-visual works, computer software and other works stipulated by laws and administrative regulations, it also has the purpose of making profits and has reached the standard stipulated by the law that the amount of illegal income is relatively large or there are other serious circumstances. could constitute a crime of copyright infringement. Although the “secondary” consignment platform has the degree of censorship obligations for works uploaded by users and works sold in cooperation with IP parties, it remains to be further explored in theory and practice, but in order to avoid risks as much as possible, we still hope The bosses and executives of major platforms should do a good job in IP authorization review to reduce possible risks.
Do a good job of anti-money laundering
Once the “secondary” consignment market is launched, a very likely situation is that criminals use the platform’s secondary market to cover up and conceal their criminal proceeds or proceeds. In this case, the platform may constitute Article 191 of the Criminal Law. The crime of money laundering in Article 312, the crime of concealing the proceeds of crime, the crime of concealing the proceeds of crime in Article 312, may also constitute the crime of helping information network criminal activities in Article 287 bis of the Criminal Law in individual cases . Therefore, doing a good job of anti-money laundering, especially screening and investigating or reporting suspicious transactions to the relevant regulatory authorities is a top priority.
write at the end
China’s NFT digital collection industry has entered a critical period of life and death, not only to face fierce market competition, but also to guard against various legal risks in daily operations . In terms of IP review, it is necessary to be more strict to prevent infringement incidents. In terms of operation, it is necessary to be more cautious. On the one hand, we must pay attention to preventing the risk of administrative violations, and on the other hand, we must pay more attention to the criminal risk. The most urgent task of the data platform is to learn to embrace compliance on the road of innovation and continue to innovate within the scope of compliance. Only in this way can it be recognized by the market after the big waves and the sediment fade away.
Posted by:CoinYuppie，Reprinted with attribution to:https://coinyuppie.com/xiao-sas-team-if-forced-to-shut-down-the-second-level-digital-tibetan-store-its-easy-to-capture/
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