Li Min: Shanghai network catering service supervision and management approach (draft) interpretation

On June 12, 2017, the Shanghai Municipal Food and Drug Administration (hereinafter referred to as the 'Municipal Food and Drug Administration') f issued the 'Shanghai Internet catering service supervision and management approach (draft)' (the draft) Hereinafter referred to as 'measures'), the 'approach' to further refine the network catering services parties should do the legal responsibility in the existing business model, with some practical regulatory significance, but there is still need to strengthen the perfect , This article will be described accordingly.

First, adjust the object

'Measures' clear the object of adjustment for the network of food service providers and online food trading third party platform, including through the Internet port to achieve all the main food business.

Second, administrative supervision

(A) food safety supervision

1, co-ordination: Municipal Food and Drug Administration is responsible for; 2, territorial management: District Food and Drug Administration is responsible.

(B) telecommunications and information services regulation

1, City Communications Bureau is responsible.

Third, the network catering service providers obligations

(A) should have a mandatory requirements of the physical shop

'Approach' is the biggest bright spot is to use the Internet to provide food and beverage services, should have a physical shop and in accordance with the law to obtain food business license or a small food service provider temporary record, and at the same time require the network catering service provider's actual business address, Etc. should be consistent with the food business license it has obtained.

The purpose of the provision is based on the purpose of ensuring the safety of food, set up the physical store is the actual requirements of industry regulation, because the prerequisite for obtaining food business license that is the reality of the physical store requirements for consumers, this is Trace the roots, identify the only straw of the responsible subject.

However, the 'approach' still need to refine the place, the current market, online catering services are divided into self-employed, joined and individual traders mainly small food processors. 'Measures' for the most common self-control model is obvious, and for some of the joining model and individual traders need to further refine. For example, by joining the model of foreign food service providers, their own non-social entities have any business, but through a certain standard and requirements to attract members of the store to join the profit distribution, the model is actually a franchise platform built on Online food trading third-party platform of the special business model, the model is consistent with the 'approach' provisions, there is no exact answer. But I believe that the model will not be 'approach' of the impact, because the form of joining the market, there is still a very large stock, as long as the strict protection of the franchisee qualification audit on the basis of the law does not exceed the mandatory provisions Administrative regulators will not take a simple and rude one by one to deal with the problem.

'Measures' for the handling of individual traders is also more 'tolerant', which did not completely kill the individual traders online catering services to provide authority, but the need to develop in accordance with the Shanghai food production and processing workshops and food vendors and other specific management practices, Access to temporary filing, you can still carry out online catering services. In addition, the responsibility issue should pay attention to is that the occurrence of infringement damage, and enterprises, different vendors need to bear unlimited joint and several liability.

(B) strict food delivery standards

1, meal delivery staff should obtain a health certificate;

2, the distribution box temperature requirements, the use of requirements, tableware packaging requirements were clearly defined.

Fourth, the network of food transactions third party platform obligations

(I) the establishment of access standards

Not only requires the platform to establish a strict access system (the system can be higher than the law, such as the provisions of only certain qualifications of enterprises settled, etc., by the enterprise's own business decisions), but also for food service providers mandatory contract obligations The

I have access to the network agreement has a certain study, but also deal with too many similar legal affairs. Network agreement is not a form of elements, some companies for the network agreement signed very casual, this is a wrong view. Because the network agreement is directly defined by the parties to the rights and obligations of the parties to the first element, in the event of a dispute, the agreement can often play a crucial role. Therefore, the third-party platform to provide network protocols to be taken seriously, can not attempt to facilitate and the pursuit of the best customer experience, and ultimately lead to business risk increase.

(2) real name certification

'Approach' of the real-name certification requirements and just on June 1 entered into the 'Internet Security Law' to follow the consensus that the main body of the information provided by the registered users need to be real-name authentication. Attention readers may have been noted that the recent third-party information publishing platform such as Baidu, microblogging, Sohu and so on to force the requirements of mobile phone certification, and even some companies as early as a year ago has begun real-name authentication, real name authentication is also for better Of the source of responsibility, which is to protect the public interest of the most effective means.

(3) qualification examination

Third-party platform for network users need through information comparison, site survey and a series of means to verify the qualifications. In practice, it is advisable to have a verification record for review by the regulatory authorities. For registered users of information updates, it should also update the corresponding data.

(4) to establish a safety credit evaluation system, and regular checks, testing food, the results to be public

The third party platform should establish the online food service provider food safety credit evaluation system, and publicize its real food safety credit evaluation status. For food safety, third-party platform should be on its own or commissioned by a third party on the platform to conduct food samples for testing, and published inspection results.

Fifth, modify the views

The State Administration of Food and Drug Administration (hereinafter referred to as the 'State Food and Drug Administration') issued a notice on the public consultation on the Measures for the Supervision and Administration of Internet Catering Services (Draft for Soliciting) on February 10, 2017, Clearly stipulates: 'Consumers through the network food trading third-party platform for ordering, its legitimate rights and interests are damaged, you can apply for compensation to the network catering service providers. Network transactions third-party platform providers can not provide network food service provider's real name, Address and effective contact with the third party platform provider of network transactions compensation.Network food trading third party platform provider compensation, the right to the network catering service provider to recover. 'The purpose of the establishment of the provision is to establish the first payment system, Better protect the legitimate rights and interests of consumers, a clear platform for the scope of responsibility, the initiative is the platform for real-name certification of effective supervision and spur.

Shanghai Food and Drug Administration as the State Food and Drug Administration under the administrative organs, although the State Food and Drug Administration issued the 'network catering service supervision and management approach (draft)' yet to take effect, but its protection of the legitimate rights and interests of consumers more Clearly, the Shanghai Food and Drug Administration issued a 'regulatory approach' should be in the sector to be refined at the regulatory level, as far as possible through the development of local government regulations to cut the rules and regulations, the practice is slightly wrong, the proposed changes.

Article 65: 'Where there is a discrepancy between local laws and regulations, the relevant authorities shall make a ruling in accordance with the following provisions: (3) between the rules and regulations, between the departmental rules and the local government regulations When the provisions of the same matter are inconsistent, the State Council ruled.

About the Author:

The author is a senior researcher at the China Electronic Commerce Research Center, a senior partner of Shanghai Hansheng Law Firm, Master of Internet and Electronic Commerce Law at the University of Hertfordshire, Member of the Communist Party of China, Special Researcher of the China Electronic Commerce Research Center, , Pudong lawyers committee members, Pudong invited lawyers mediator, Han Sheng group secretary. Focus on the Internet and e-commerce law, corporate law wind control, corporate business disputes and other areas of legal services, is the world's top 100 enterprises in the perennial legal adviser.

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