The Faquan Balance In The Administrative Authorities Managing Merchants Through Network Platform

Administrative agencies manage online merchants through third-party online transaction platform operators(hereinafter referred to as platforms),mainly including supervising the platform’s performance of statutory obligations to manage merchants and exchanging data with the platforms to jointly manage merchants.The former is based on the platform’s obligation to ‘manage’ merchants stipulated in laws and regulations such as the <E-Commerce Law>,<Food Safety Law>,and <Measures for the Supervision and Administration of Online Transactions>.The latter is based on the<Interim Measures for Punishment of Illegal and Untrustworthy Online Transactions>as the main normative basis.In implementing the above-mentioned laws and regulations,administrative agencies often use methods such as administrative interviews and warnings to supervise platform to ‘manage’ merchants.In terms of data exchange with the platform,they adopt methods such as exchanging information on illegal merchants with the platform and requiring the platform to provide direct access to merchants.Legal norms that require platforms to ‘manage’ merchants provide a legal basis for platforms to restrict and regulate merchants’ business operations.However,combined with the use of the word ‘manage’ in the Chinese Constitution,it can be seen that as a market entity that has no affiliation with merchants,it has no obligation or right to ‘manage’ merchants,although it also needs to punish illegal transactions in order to maintain the order of transactions on the platform,taking corresponding measures on merchants in violation of the regulations,but this is only for their business needs rather than ‘management’ needs.However,this kind of ‘operation’behavior is different from other business operations that aim at profit,which rather than just maintaining the stable operation of the platform economy order.The differences are reflected in the fact that it will affect the interests of an unspecified majority and its ‘management’ measures are similar to administrative supervision measures.Therefore,in the process of implementing the administrative supervision requirements to ‘manage’ merchants,the platform will integrate the purpose of ‘profit’into the purpose of ‘management’,causing confusion between the business behavior for the purpose of profit and the business behavior for the purpose of ‘management’,unreasonably expand the scope of ‘management’,increase the intensity of‘management’,and damage the rights of merchants.In the Faquan relationship formed by the administrative agencies managing merchants through the platform,it is necessary to clarify the nature of the platform’s‘management’ of merchants and the relationship between the platform and the administrative agencies.As for the nature of the behavior of platform managing merchants,the existing definitions of ‘private power’,‘social power’,‘technical power’ and other ‘quasi-powers’ do not conform to the Chinese legal practice governed by the Chinese Constitution,and cannot find its corresponding position in the Chinese legal system.As a market entity,platforms use their private property as the material basis for ‘managing’ merchants,so they can only exercise rights,not‘quasi-powers’.Between the administrative agencies and the platforms,the administrative agencies have no intention to entrust the platforms,so the two cannot form an administrative entrustment relationship.The platforms’ ‘management’ on merchants is actually an integral part of its business operations.In order to maintain the order of transactions on the platform and ensure its continuous profitability,the platform itself needs to ‘manage’ merchants.At the same time,in order to avoid administrative legal responsibilities,the platforms implement the statutory management obligations and administrative supervision in the ‘platform rules’ signed with merchants.Therefore,the platform’s management on merchants is also the subject of supervision by the administrative agencies,and the platform is also the subject of supervision.The platforms hold the identity information and behavior data of merchants,and can detect and stop illegal acts of merchants in a timely manner.Administrative agencies can effectively save law enforcement costs by managing merchants through the platform,and it is the choice of maximizing economic benefits,but they also need to avoid infringing on the rights of platforms and merchants to achieve a faquan balance.‘Faquan balance’ refers to the state in which the Faquan that the relevant subjects should enjoy according to the constitution and laws are not obviously occupied or eroded by the counterparty or relevant subjects,and the constitution and legal order are effectively maintained.The faquan balance in which the administrative agencies manage merchants through the platform should form includes the faquan balance among the three pairs of faquan subjects.First,the balance between administrative supervision power and merchant rights.The administrative agencies should supervise the merchants legally and reasonably to avoid infringing on the rights of the merchants.Merchants can apply for administrative reconsideration and file administrative lawsuits against illegal and unreasonable administrative actions;Secondly,the balance between administrative supervision power and platforms’ rights.The administrative agencies shall effectively supervise the situation of platforms managing meichants in accordance with the law and reasonably to avoid infringing on the rights of the platforms.The platforms can apply for administrative reconsideration and file administrative lawsuits against illegal and unreasonable administrative actions;Thirdly,the balance between platforms’ rights and merchants’ rights.The platforms legally and reasonably exercise the ‘management’ right to avoid chaos in the market order on the platform,and merchants can apply for rights relief for the platform’s illegal and improper exercise of the ‘management’ right.The problems that arise when administrative agencies manage merchants through the platform are that the administrative agencies illegally and unreasonably exercise regulatory power,resulting in an imbalance between administrative regulatory power and merchants’ rights,as well as an imbalance between administrative regulatory power and platforms’ rights.In addition,the illegal and unreasonable exercise of the‘management’ right has led to an imbalance between the platforms’ ‘management’rights and the merchants’ rights.The path of faquan balance specifically includes the following two aspects.First,administrative agencies and platforms are required to follow the provisions of existing laws in order to restore the state of faquan balance preset by legal norms;Secondly,when the legal norms are insufficient or the system design which is conducive to maximizing the overall interests of society objectively causes the imbalance of legal power,or poses a threat of infringement to the weak part,it is necessary to return to the essence of faquan balance,that is,under the guidance of the goal of maximizing the total amount of faquan,promoting the relative balance of the material property(natural existence form)or interest(social existence form)of each subject,specifically through the improvement of legislation and other means to achieve the relative balance of faquan volume or strength among faquan subjects,in order to achieve the state of constitutional and legal order effectively.