以夫妻共同财产进行直播打赏的合同效力研究

The Validity of Contracts for Live Streaming Tipping Funded by Community Propert

  • 摘要: 直播打赏从流程来看包括充值行为、购买礼物行为、打赏礼物行为,在充值行为和购买礼物行为中用户与平台成立网络服务合同,打赏礼物行为中用户同时与主播和平台成立网络服务合同。用户、平台间的网络服务合同与用户、主播间的网络服务合同具有独立性,用户与主播间的网络服务合同悖俗无效,不影响用户、平台间网络服务合同的效力。用户、主播间网络服务合同悖俗无效时,主播应返还用户打赏财产,平台无需返还。用户、主播间网络服务合同有效时,打赏财产所有权是否发生所有权转移,应以打赏财产是否“明显超出家庭一般消费水平”为判断标准:未超出该标准为有权处分,主播可获得打赏财产所有权;超出该标准,主播只有当善意且付出了合理对价的直播表演时,才适用善意取得制度,取得打赏财产的所有权。在主播返还客体的问题上,主播不能以用户打赏的虚拟礼物为返还客体,可以以虚拟货币或现金为返还客体。在主播返还数额的问题上,原则上应当全额返还,但法院也可能扣除主播的正常直播服务对价或考虑到打赏人配偶对损失扩大有过失而判决酌情返还。

     

    Abstract: From the perspective of the process, live streaming tipping consists of three steps: recharging, purchasing gifts, and tipping gifts. During the recharging and gift-purchasing phases, a network service contract is formed between the user and the platform. During the tipping phase, the user simultaneously enters into network service contracts with both the streamer and the platform. The network service contract between the user and the platform is independent from that between the user and the streamer. The invalidity of the contract between the user and the streamer due to its contravention of public policy does not affect the validity of the contract between the user and the platform. When the network service contract between the user and the streamer is void for being contrary to public policy, the streamer shall return the tipped property to the user, while the platform is not obliged to make restitution. When the contract is valid, whether the ownership of the tipped property is transferred shall be determined by whether the tip obviously exceeds the ordinary consumption level of the household. If it does not exceed that level, the disposition is authorised, and the streamer may acquire ownership of the tipped property. If it exceeds that level, the streamer may acquire ownership through the doctrine of bona fide acquisition only when the streamer acted in good faith and provided live performance in exchange for reasonable consideration. Regarding the object of restitution, the streamer cannot return the virtual gifts tipped by the user; instead, restitution may be made in virtual currency or cash. As to the amount of restitution, full restitution is generally required, but the court may deduct the ordinary consideration for the streamer's live streaming services or, taking into account the negligence of the tipper's spouse in aggravating the loss, order partial restitution at its discretion.

     

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