Wang did not expect that the first meeting with the female anchor was not pleasant. Wang came from Chongqing and went to Laos to do business. He had not found a suitable partner at his marriageable age. In February, 2022, Mr. Wang paid attention to a fellow female anchor in Tiktok. Because of "love at first sight", he generously rewarded the anchor for many times and became his "No. 1 brother". There is no hope of communicating with the female anchor. Wang doesn't want to continue to reward.
According to Wang, after giving up the reward, the female anchor took the initiative to contact him and promised to be his girlfriend. Since then, Mr. Wang has continued to reward the female anchor. After "developing to a certain stage", he has given his Tiktok account to the female anchor to reward himself.
Recently, Wang returned home to meet with the female anchor, but the two broke up unhappily. The female anchor said that she had never promised to be Wang's girlfriend, and stressed that Wang's reward was voluntary. Both sides, who have been at loggerheads, said that the next step would be to solve the problem through judicial channels.
In recent years, similar disputes are common.
Zhanglinghan, a professor of the data and rule of Law Research Institute of China University of political science and law, told e-Law of Finance and economics that the property that needs to be returned after the dissolution of the relationship between a man and a woman is generally a large gift or betrothal gift with the establishment of marriage as a condition. If the man asks for the return of valuable gifts or betrothal gifts given by the man after the two parties break up, because the man is an adult with the ability to express his will independently, the law generally will not consider his disposition of his property invalid, including the unsuccessful pursuit of the anchor.
According to the e-Law of Finance and economics, most of the similar disputes are men who reward the female anchor, and the men often require the female anchor and the live broadcast platform to return the reward money, which ranges from tens of thousands of yuan to millions of yuan. In some cases, because the man is married, the trial of such cases also involves property disputes between husband and wife.
At present, there are still arguments about the legal nature of the reward for webcast, but there is no objection that the reward money is generally difficult to recover.
Reward is hard to return
According to a judgment document disclosed by the Beijing Internet Court on April 8, 2022, Zhao met the network anchor Zhang on the live broadcast platform, but to his surprise, Zhang sent his wechat to himself two days later. Since then, the two have often contacted on wechat. In order to improve the popularity of the live broadcast room, Zhang asked Zhao to reward him during the live broadcast, and promised to privately return the reward amount. However, Zhao found that the reward money would not come back.
Feeling cheated, Zhao sued Zhang and the live broadcasting platform to the court, saying that Zhang cheated his feelings so as to increase the reward. He was an involuntary reward, and the live broadcasting platform obtained part of the proceeds from the reward, and should be responsible for the anchor's violation of public order and good customs on the platform. Zhao claimed that Zhang and the live broadcasting platform company should jointly return the reward of more than 40000 yuan.
The Beijing Internet court held that, due to the obvious commercial nature of the live broadcast reward, it forms a consideration with the performance service and the payment is not mandatory. In addition, the reward may obtain differentiated interactive services. Accordingly, the court held that Zhao's reward was a service contract in legal nature.
The court held that although Zhang did "hint, tempt or encourage users to give large rewards" during the live broadcast, such as "can I get a candy shell, can I go to 30, and Tan Gongzi and I (a user's nickname in the live broadcast room) took a bath in the same place", he did use the specific relationship and emotional requirements of both parties with Zhao to help give rewards, but Zhao has full civil capacity, discrimination ability and cognitive level, Knowing that Zhang gave a reward on the ground of helping, but in fact it was to increase the amount of reward, it should be recognized that the reward belongs to Zhao's true intention.
With regard to Zhang's behavior of privately contacting to help reward and then returning, or privately contacting to help reward and win, the court held that, depending on the specific circumstances, it may constitute that the anchor organized the navy to "brush gifts" and mistakenly induced other users in the live broadcasting room, thus constituting fraud. However, in this case, Zhao was not a qualified claim subject. Finally, the court rejected all the claims of Zhao.
Finance and economics e law notes that when the court hears cases related to live broadcast reward, it often divides live broadcast reward into two processes: recharge and reward. For recharging, the court generally believes that this is an act of prepayment. Users sign a service contract with the platform through registration, and recharge in advance to exchange for virtual currency. At this time, they have not completed their consumption behavior, and the purpose of recharging is to further enjoy rewards and other services.
As for the legal nature of reward, the e-Law of Finance and economics combs the judgment documents and finds that at present, there are two opinions on the legal nature of reward for live broadcast in judicial practice: one opinion holds that reward for live broadcast belongs to a gift contract, and whether users reward the anchor's performance and the amount of reward are purely voluntary, with the legal characteristics of gift, that is, single service and free; Another opinion is that the live broadcast reward is a service contract concluded based on consumer behavior. The anchor provides performance services, and the reward giver, as an audience, gets spiritual enjoyment, as well as attention and satisfaction in the reward process. Therefore, the live broadcast service belongs to a new service mode, which is a service form of non mandatory payment.
It is worth noting that in the second view, the reward party has entered into a service contract with the platform, rather than a contractual relationship with the anchor. This view holds that, since the reward behavior is only to send the virtual props to the anchor, the reward party does not and cannot possess the props, and the anchor cannot possess, use, benefit and dispose of the virtual props he receives. The virtual props are only used as integral symbols to exchange for remuneration, which is different from general property rights and interests. Therefore, the use of virtual props, that is, the reward process does not produce new value, and does not build a new legal relationship.
In the existing judicial decisions, the court defines the live broadcast reward as a service contract. "Although the user directly rewards the anchor, almost all platforms only allow the reward of virtual items. These virtual items are purchased by the user from the platform for consumption on the platform. The anchor is just a consumption item on the platform." Xiong Dingzhong, chief partner of Beijing Qinglu law firm, said to e-Law of Finance and economics.
Whether the reward behavior is characterized as a gift contract or a service contract, it is difficult to return the reward money when the reward is an adult and the reward amount is obtained in a proper way.
In some cases, because the reward giver is married, the trial of such cases also involves property disputes between husband and wife. The key to whether the reward amount can be refunded lies in whether the common property interests of husband and wife have been damaged.
How to define damage
A judgment disclosed by Shanghai Yangpu District People's court shows that Hua and his wife Liu have been married for ten years and have a son. In July, 2020, due to the poor management of a company in China, there was no income. Until April, 2021, the household expenses were borne by Mr. Liu.
In February, 2021, Liu found the chat and transfer records between Hua and a female anchor on the live broadcast platform, and the relationship between the husband and wife "turned red". Liu found that Hua and female anchor Wu not only had daily communication, but also had improper relationships such as offline dating and shopping, so he sued Hua, Wu and the live broadcast platform to the people's Court of Yangpu District, Shanghai.
Liu believes that Hua's behavior of constantly recharging and rewarding Wu is far beyond the general purpose of normal consumption and rewarding, but out of the active pursuit of maintaining an improper relationship with Wu, involving the disposal of the common property of husband and wife, which is also against public order and good customs. Therefore, Hua's gift behavior should be invalid, and the benefits obtained by Wu and the live broadcasting platform based on this invalid behavior should be returned.
The court held that after recharging, Hua could not only watch the live broadcast, but also exchange virtual props, use the special effects generated by the virtual props to increase the viewing experience, and gain the attention, even envy and worship of the anchor and other users, so as to achieve spiritual satisfaction in the virtual environment. Therefore, Hua's recharging and reward behavior is a complete consumption behavior.
As for whether the reward behavior is beyond the scope of daily life consumption, the court does not only consider the amount of reward in the trial, but also comprehensively consider the recharge amount, recharge times, recharge time, duration, family income, platform obligations and other reasons. According to the e-method of Finance and economics, in many cases, the amount of reward given by the reward giver ranged from tens of thousands of yuan to hundreds of thousands of yuan. However, considering the recharge duration and other factors, the court did not determine that the consumption exceeded the consumption of daily life.
As for the legal effect of the reward behavior of Mr. Hua, the court held that although the total face value of the reward was large, Mr. Hua regarded watching live broadcast as one of the ways of entertainment, which could be regarded as the consumption of his spiritual needs, and his recharge and reward were characterized by small amount and many times, and there was no evidence to prove that his reward caused difficulties in family life, so it was recognized as necessary for daily life, Hua's reward did not go beyond the scope of the right of the husband and wife to dispose of the common property. In addition, it was difficult for the platform to review and judge whether the recharge infringed the rights and interests of other co owners, and there was no evidence that Wu knew the source of the reward money and infringed the legitimate rights and interests of other co owners. Therefore, the court held that Hua's reward was effective.
As for Liu's claim that there is an ambiguous relationship between Hua and Wu, which violates public order and good customs, the court held that the mere chat records, the amount of reward, and the user's possible unilateral love for the anchor are not enough to prove that there is an illegitimate relationship between Hua and Wu. In addition, Wu, as a host, showed his talent during the live broadcast. There is no evidence that his live broadcast content or speech violated the law or public order and good customs. Therefore, Wu's behavior of using his own conditions to obtain remuneration should be protected. Finally, the court rejected Liu's claim.
In other cases, if there is evidence that the husband and wife have an improper relationship with the anchor, the anchor has the obligation to return the reward Commission.
The people's Court of Heping District of Shenyang issued a case in December 2021. In this case, the man Zhao and the female anchor Zuo frequently rewarded each other after they met and established an intimate relationship.
The court heard that there was evidence that Zuo knew that Zhao was married soon after he contacted him. The court held that during the duration of the husband wife relationship, Zhao maintained an improper relationship with Zuo and disposed of the husband wife's common property without authorization, including a commission on the live broadcast platform, a cash gift, and a large amount of cash for his purchase of real estate, and all of them infringed on his wife's common property rights and interests without his wife's consent.
In response to the question of whether the reward should be returned, the court held that the reward was effective because the man formed a network service contract relationship with the live broadcast platform. However, Zhao rewarded Zuo nearly 2million yuan, which obviously exceeded the daily consumption. The reward constituted a waste of the common property of the husband and wife and seriously damaged the interests of the common property of the husband and wife. 60% of Zuo's Commission, that is, about 1.2 million yuan, constituted an unjust gain and should be returned.
Zhanglinghan said that when the following conditions are met, the act of rewarding the anchor may constitute a violation of the common property of the husband and wife. First, the amount of reward is huge, which constitutes the behavior of "squandering" the common property of husband and wife. If one of the husband and wife obviously exceeds the necessary consumption scope of living together in the live broadcast consumption, and it belongs to a huge amount of consumption compared with the income level of the husband and wife, it constitutes "waste". One party can request to split the husband and wife's common property and stop the loss in time; Second, if one of the husband and wife rewards the anchor with a large amount of common property during the duration of the marriage relationship, resulting in the divorce of the husband and wife, it may constitute "other major faults" for the divorce; Third, if one of the husband and wife and the anchor, in addition to online reward, also constitute an improper relationship in reality, reward is more likely to be recognized as an act that infringes the right to dispose of the husband and wife's common property, and there is no legal basis for obtaining the reward property, which constitutes unjust enrichment.
By Yaojiaying
Editor / Luwei