夫妻共同财产直播打赏所涉合同效力研究

Research on Validity of the Contract Involving Live-streaming Tips from Jointly-owned Spousal Property

  • 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 includes recharging behavior, purchasing gift behavior, and tipping gift behavior. In the recharging behavior and purchasing gift behavior, the user and the platform form a network service contract. In the tipping gift behavior, the user simultaneously forms a network service contract with the live-streamer and the platform. The network service contract between the user and the platform and the network service contract between the user and the live-streamer are independent. The network service contract between the user and the live-streamer is invalid due to violation of public order and does not affect the validity of the network service contract between the user and the platform. When the network service contract between the user and the live-streamer is invalid due to violation of public order, the live-streamer should return the tipped property to the user, and the platform does not need to return it. When the network service contract between the user and the live-streamer is valid, whether the ownership of the tipped property is transferred should be judged based on whether it "exceeds the general consumption level of a family": if it does not exceed this standard, it is a valid transfer, and the live-streamer can obtain the ownership of the tipped property; if it exceeds this standard, the live-streamer can only obtain the ownership of the tipped property through the good faith acquisition system when they are in good faith and have paid a reasonable price for the live-streaming performance. Regarding the subject matter of the live-streamer's return, the live-streamer cannot use the virtual gifts tipped by the user as the subject matter of the return, but can use virtual currency or cash. Regarding the amount of the live-streamer's return, in principle, it should be returned in full, but the court may also deduct the reasonable price of the live-streamer's normal live-streaming service or consider that the user's spouse is at fault for the expansion of the loss and rule for a discretionary return.

     

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