E-commerce operator is one of the core concepts of China's e-commerce law. Article 9 of the E-Commerce Law stipulates that e-commerce operators mentioned in this Law refer to natural persons, legal persons and unincorporated organizations engaged in business activities of selling goods or providing services through information networks such as the Internet, including e-commerce platform operators, in-platform operators and e-commerce operators selling goods or providing services through self-built websites and other network services. E-commerce platform operators mentioned in this Law refer to legal persons or unincorporated organizations that provide online business premises, transaction matching, information release and other services for two or more parties to independently conduct transactions in e-commerce. The term "in-platform operators" as mentioned in this Law refers to e-commerce operators who sell goods or provide services through e-commerce platforms.
(A) the meaning of e-commerce operators
1. E-commerce operators are the market subjects engaged in business activities, that is, commercial subjects. Commercial subject needs to have two elements. The first is the profit-making purpose of the transaction, which is different from consumers and other non-operating users who participate in the transaction. Second, the transaction is regular and sustainable. Occasionally, even if the main body engaged in trading activities is for profit, it is usually not recognized as an operator, such as selling idle goods for personal use.
2. E-commerce operators are market participants who engage in business activities through information networks such as the Internet. It should be understood here that as long as transactions are made through information networks such as the Internet, they all belong to e-commerce business activities, and it is not necessary to conduct all activities through the Internet.
3. The business activities of e-commerce operators include not only selling goods, but also providing services. The provision of services here should be understood in a broad sense, including not only the services as the main body of the transaction itself, but also the payment, logistics, promotion, consultation and other related services for the transactions of the parties.
4. The existing forms of e-commerce operators can be natural persons, legal persons and unincorporated organizations.
(2) Types of e-commerce operators
There are four types of e-commerce operators.
1. e-commerce platform operators
The identification of e-commerce platform operators involves how to understand the expression of "providing online business premises, transaction matching, information release and other services for two or more parties to independently conduct trading activities" as stipulated in the second paragraph of Article 9 of the Electronic Commerce Law. The author thinks that the operator of e-commerce platform is a new type of subject with independent elements established by e-commerce law, with the purpose of giving the platform corresponding responsibilities and obligations.
According to the provisions of this article, the main elements of e-commerce platform operators are a whole and comprehensive element, and if one of them is met, it does not belong to e-commerce platform operators. For example, a separate information publishing place does not belong to the e-commerce platform operator. To sum up, the core requirement of e-commerce platform operators is to create and decide the trading patterns and rules between users, and provide corresponding services by providing network places, rather than participating in specific trading activities between users.
2. Operators in the platform
In-platform operators refer to e-commerce operators who sell goods or provide services through e-commerce platforms. Operators in the platform can be natural persons, legal persons and unincorporated organizations. Except for activities prohibited by law and areas requiring administrative license, in principle, operators are not restricted from selling goods or providing services within the platform.
3. Self-built website operators
That is, operators establish their own network systems and network business premises, and sell goods and provide services in their own names through network information systems.
4. Operators who sell goods or provide services through other network services.
Such operators mainly refer to operators who sell goods and provide services through social platforms such as WeChat and webcasting platforms. Through the regulation of such operators, the E-Commerce Law brings operators such as WeChat business into the scope of adjustment, covering a more comprehensive scope of subjects. This also means that social platforms such as WeChat, as other network service providers, are two different subjects from the operators of e-commerce platforms stipulated in the E-commerce Law, and their responsibilities should be different.
Two. Market subject registration of e-commerce operators
Article 10 of the "Electronic Commerce Law" stipulates that e-commerce operators shall register market entities according to law. However, unless individuals sell their own agricultural and sideline products and household handicraft products, individuals do not need to obtain permission according to law, nor do they need to register according to laws and administrative regulations. Fulfilling the registration obligation of market entities according to law is an important way for market entities to show their business identity and improve their credit level, which is not only conducive to market supervision, but also an important embodiment of the state's encouragement of the common development of online and offline operations.
(a) the principle of registration and the scope of exemption from registration
In the process of legislation, the question of whether e-commerce operators should be registered as market subjects has aroused heated discussion. "Electronic Commerce Law" finally adopted the system of principle registration and exception exemption, that is, in addition to statutory exemption registration, e-commerce operators should be registered as market subjects.
According to the provisions of Article 10 of the Electronic Commerce Law, there are four situations where there is no need to register as a market entity: first, individuals sell their own agricultural and sideline products and household handicrafts; Second, individuals use their own skills to facilitate labor activities without obtaining permission according to law; The third is sporadic small transaction activities; Fourth, laws and administrative regulations do not require registration. Unless otherwise provided by law, the above exemption registration is only applicable to the case of conducting business activities in the name of natural persons, and enterprises need to be registered as market entities to carry out e-commerce activities. As for what is sporadic small transactions, there is no clear regulation at present. In the author's view, in the absence of clear provisions, all localities can grasp the scale by themselves according to factors such as transaction types and tax exemption standards in practice, and implement this provision through encouragement and guidance.
(2) Registration method
The E-commerce Law does not specify the specific registration method of e-commerce operators. According to the Opinions of the General Administration of Market Supervision on Doing a Good Job in the Registration of E-commerce Operators, e-commerce operators applying for registration as individual industrial and commercial households are allowed to register their network business premises as business premises. To engage in business activities on multiple e-commerce platforms, it is necessary to register multiple network business sites engaged in business activities with the registration authority. Registration is allowed with the habitual residence as the domicile, and the market supervision departments of counties, autonomous counties, cities not divided into districts and municipal districts where the personal residence is located are the registration authorities. Individual industrial and commercial households registered in online business premises can only conduct business activities through the Internet, and shall not change the use of their residential houses for offline production and business activities without authorization, and shall make relevant commitments. The registration authority shall indicate "(only engaging in business activities through the Internet)" in the "business scope" of its business license.
Three. Tax registration and tax payment obligations of e-commerce operators
Article 11 of the Electronic Commerce Law stipulates the tax registration and tax payment obligations of e-commerce operators. E-commerce operators shall fulfill their tax obligations and enjoy preferential tax treatment according to law. An e-commerce operator who does not need to be registered as a market entity shall, after the first tax payment obligation occurs, go through the tax registration in accordance with the provisions of laws and administrative regulations on tax collection management and truthfully declare tax payment. The above provisions are general provisions, and the specific provisions of the tax law shall apply when implementing them.
It should be noted that market entity registration and tax registration are two different obligations, and the market entity registration obligation is not the premise of tax payment obligation and tax registration obligation. In other words, e-commerce operators who do not need to be registered as market entities according to law still need to fulfill their obligations of tax registration and tax declaration.
According to the second paragraph of Article 28 of the Electronic Commerce Law, the operators of e-commerce platforms shall submit the identity information and tax-related information of the operators in the platforms to the tax authorities in accordance with the provisions of laws and administrative regulations on tax collection management, and shall remind the e-commerce operators who do not need to register as market entities in accordance with the provisions of Article 10 of this Law to register as tax entities in accordance with the provisions of the second paragraph of Article 11 of this Law. It can be seen that the operators of e-commerce platforms have the obligation to prompt and submit information when fulfilling their tax declaration and tax registration obligations. This is because the operator of the e-commerce platform is the first and most convenient to obtain the information changes and operating conditions of the operator. In addition to the obligation to provide real information such as the identity, address, contact information and administrative license of the operators in the platform, it should also submit the tax payment situation and related information of the operators in the platform to the tax authorities according to law.
It is worth noting that e-commerce platform operators only undertake the obligation of prompting and submitting information, and do not undertake the obligation of tax registration and tax declaration on behalf of operators within the platform. As long as the e-commerce platform operators fulfill the above obligations, if the operators in the platform do not fulfill the tax registration and tax declaration obligations, the main body of responsibility is the operators in the platform.