E-commerce export is very different from traditional trade in terms of transaction methods, cargo transportation, payment settlement, etc. Laws and regulations and existing environmental conditions cannot meet its development needs. The main problems are still concentrated in taxation, inspection and quarantine, cross-border payment and intellectual property rights.
I. Several core legal issues of cross-border e-commerce
At present, the core of cross-border e-commerce law in my country includes the following aspects.
1. Taxation
The postal tax that cross-border e-commerce has used for a period of time has become history with the issuance of the “Notice on the Tax Policy for Cross-border E-commerce Retail Import”. Cross-border e-commerce is gradually treated equally with ordinary trade in terms of taxation, which may aggravate gray customs clearance to a certain extent, and customs will also carry out stricter law enforcement in this area. Therefore, it is worth studying how cross-border e-commerce can make taxation legal, reasonable and appropriate while maintaining its own advantages.
2. Inspection and quarantine
The inspection and quarantine of bonded areas is mainly carried out in accordance with the “Four Laws and Three Regulations” and the “Administrative Measures for the Quarantine of Inbound and Outbound Mail” and other regulations. At present, inspections in bonded areas only need to apply conformity testing standards, that is, in accordance with local production standards and international mutual recognition standards, which can be flexibly applied in actual operations.
3. Cross-border payment
Cross-border payment includes cross-border third-party payment and cross-border RMB payment. The former is based on the “Guiding Opinions on the Pilot of Cross-border E-commerce Foreign Exchange Payment Business of Payment Institutions” issued by the State Administration of Foreign Exchange in March 2013. Consumers place orders on overseas websites in their own currency, which is converted into foreign currency through pilot payment institutions and paid to overseas merchants.
The latter is mainly based on the “Opinions on Financial Support for the Construction of China (Shanghai) Baiyou Pilot Trade Zone” issued by the People’s Bank of China and the “Implementation Opinions on Shanghai Payment Institutions Carrying out Cross-border RMB Payment Business” issued by the Shanghai Headquarters of the People’s Bank of China. The characteristics of this type of payment are saving the currency exchange process, shortening the payment cycle (within T+3 days), and avoiding losses from exchange rate differences.
4. Intellectual Property
Intellectual property mainly refers to brand registration. When overseas companies are preparing to conduct business in China, they may encounter situations where the brand has been preemptively registered by others in China, and vice versa. In this regard, the case in which New Balance was ordered to pay 98 million yuan is a warning.
5. Platform liability
Domestic laws have a number of statutory obligations for trading platforms, see the previous “Legal Eye E-commerce Picture Media: Ten Obligations of Platforms”. In addition, cross-border trading platforms must also consider many issues such as whether overseas merchants can settle in, the selection of website servers and data centers, etc.
6. Information use and big data
In terms of information collection and use, the three principles of legality, legitimacy and necessity stipulated in Article 29 of the Consumer Rights Protection Law are mainly referred to. In the future, the latest Russian data legislation may be referred to, such as requiring data to be stored within the country and restricting cross-border data flow.
Since 2007, Dianping.com has discovered that Aibang.com has published a large amount of restaurant information and user reviews from Dianping.com on its website without permission and used them for commercial operations. Dianping.com has repeatedly requested Aibang.com to immediately delete the infringing content but failed, and has sued Aibang.com many times. The first two times were sued in the name of copyright. In November 2010, Dianping.com sued Aibang.com again in the name of unfair competition and finally won this judgment.
7. Consumer Rights Protection
In cross-border e-commerce transactions, some domestic regulations on consumer protection, such as seven-day unconditional return, are difficult to implement, affecting consumers’ shopping experience. Therefore, when doing cross-border e-commerce, overseas brands are also trying to refer to the service standards of consumers in the country where consumers are located to protect consumer rights. The problem to be noted is that according to the current regulations, goods purchased by consumers with postal and mail tax cannot be resold after being returned, otherwise it will be suspected of smuggling.
In addition, many professional anti-counterfeiting people are good at taking advantage of a series of “weaknesses” of cross-border e-commerce, such as labels and products that do not meet national standards. At present, these behaviors have been included in the scope of consumer rights protection, and consumers can protect their rights.
8. Foreign investment access
According to the “Foreign Investment Industry Guidance Catalogue” revised by the Ministry of Commerce in 2015 and the “Notice on Lifting the Foreign Equity Ratio Restriction of Online Data Processing and Transaction Processing Business (Business E-commerce)” recently issued by the Ministry of Industry and Information Technology, the policy of foreign investment in the e-commerce industry has been completely liberalized. The next step is to define the scope of business e-commerce, which determines the space for foreign investment.
II. Guidance and interpretation of various departments on cross-border e-commerce
Customs, industry and commerce, commodity inspection and other departments have carried out supervision on cross-border e-commerce according to their respective responsibilities.
The explanation of customs in the “Letter of the Canada Trade Department on Strengthening the Supervision of Cross-border E-commerce Online Purchase Bonded Import”:
(1) All customs should strictly follow the requirements of the “Announcement of the General Administration of Customs on the Supervision of Cross-border E-commerce Import and Export Goods and Commodities” and other relevant documents, formulate supervision methods, standardize operations, and strictly supervise, and shall not arbitrarily expand policy regulations.
(2) Online purchase bonded import should be carried out in special supervision areas or bonded logistics centers in cities that have been approved to carry out cross-border trade e-commerce service pilot cities. Cities that are not cross-border trade e-commerce service pilot cities are not allowed to carry out online purchase bonded import business. No customs shall carry out online purchase bonded import business in bonded warehouses.
(3) Regions that carry out online bonded imports should have an e-commerce customs clearance service platform, set up special warehouses to implement centralized management of cross-border bonded imported goods, and be equipped with X-ray inspection and sorting lines, video surveillance and other facilities that meet the customs’ cross-border commodity supervision requirements. Enterprises in regions that carry out online bonded imports should promptly transmit transaction, logistics, payment and warehousing data to the customs clearance management platform through the e-commerce customs clearance service platform in accordance with regulations, and transmit the electronic data of the entry, exit, transfer and storage of cross-border bonded imported goods in the previous month to the customs before the 10th of each month.
(4) Customs should strengthen the construction of cross-border e-commerce information systems, set parameters for information management systems in accordance with the principle of “personal use and reasonable quantity”, strengthen the analysis and monitoring of cross-border bonded imported goods, e-commerce enterprises and consumer information data; and strengthen the identity authentication of online bonded import consumers. If any abnormal situation is found, it should be transferred to the inspection or anti-smuggling department in a timely manner, and severely crack down on illegal and criminal acts of smuggling by “breaking the whole into pieces” through cross-border e-commerce online bonded import channels.
(5) For relevant enterprises or individuals that are found to have violated laws and regulations, the competent customs shall cancel their qualification to participate in the pilot program of bonded import for online shopping. Areas with chaotic management and irregular operation shall be ordered to make rectifications. If the rectifications are not satisfactory, their pilot qualification shall be cancelled.
(6) The customs directly under each pilot city shall conduct special inspections on the supervision of bonded import for online shopping in their customs area since the pilot program. Summarize the experience of the pilot program, analyze the existing problems, find regulatory loopholes, deal with abnormal situations, and improve the regulatory methods.
The State Administration for Industry and Commerce stated that from January 1, 2018, the scope of application of the transitional period policy for cross-border e-commerce retail import supervision will be expanded to five cities: Hefei, Chengdu, Dalian, Qingdao, and Suzhou. The commodity inspection department stated that currently, general food products need commodity inspection, animals and plants need import animal and plant inspection and quarantine licenses, and mobile phones, computer switches and other products that are in close contact with the human body need 3C. Different goods have different inspection and quarantine requirements.
III. Government support policies for cross-border e-commerce
As the first comprehensive pilot zone for cross-border e-commerce in China, Hangzhou has seen many bright spots in the development of cross-border e-commerce. The “Implementation Opinions of Hangzhou on Accelerating the Development of Cross-border E-commerce” has been officially issued, which will increase support in ten aspects, including the introduction of leading enterprises, the cultivation of cross-border e-commerce brands, the construction of the “single window” platform and the development of industrial parks, so as to further seize the commanding heights of cross-border e-commerce. The “Implementation Opinions” stipulate that for cross-border e-commerce enterprises settled in Hangzhou, if the cross-border e-commerce import and export volume exceeds US$100 million and US$50 million in the first year of settlement, a one-time financial support of no more than RMB 5 million and RMB 1 million will be given respectively.
At the same time, Hangzhou encourages all types of cross-border e-commerce trading platforms to take measures to increase the turnover of cross-border e-commerce. First, for cross-border e-commerce trading platforms with a turnover of more than US$20 million in the previous year, if the cross-border e-commerce turnover increased by more than 10% year-on-year, a financial support of no more than RMB 200,000 will be given; second, if the year-on-year increase exceeded 20%, a financial support of no more than RMB 500,000 will be given; third, if the year-on-year increase exceeded 50%, a financial support of no more than RMB 1 million will be given.
The Ministry of Finance, Ministry of Commerce, General Administration of Customs and other departments are already in the process of adjusting the tax policy for cross-border e-commerce imports. At present, all departments have reached a consensus and some plans have been implemented: first, increase support to achieve a unified tax policy across the country; second, increase the tax rate for travel and mail, reduce the difference between travel and mail tax and trade tax, encourage traditional import companies to transform into e-commerce models, and promote industry development.