Live tipping is becoming a focus of divorce disputes and post-divorce property disputes. Some of them broke down because one party was addicted to live broadcast rewards, which led to the breakdown of the relationship between husband and wife; Some claimed to the online anchor or live broadcast platform to revoke the gift after the divorce and demanded the return of the tip. So, can the money that has been rewarded be returned?
The newly released Interpretation (II) of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China supplements and refines the existing laws, aiming to better solve practical problems in the field of marriage and family. Judge Tian Song of the Meilong Court of Minhang Court and Lawyer Cao Lei of Shanghai Shenjie Law Firm were guests in this issue of Law School to interpret the application effect of this "Judicial Interpretation" in real cases. In the program, the two guests analyzed and interpreted the issue of "whether one of the husband and wife can request the return of the live broadcast tip" from the professional perspective of judges and lawyers.
This judicial interpretation is mainly discussed in two situations:
First, "Where there is evidence showing that the livestreaming content contains vulgar information such as obscenity or pornography to lure users to tip, and the other party claims that the civil juristic act is invalid and requests that the online livestreaming platform return the money already tipped, the people's courts shall support it in accordance with law. ”
Lawyer Cao Lei believes that if the live broadcast content contains vulgar information such as obscenity and pornography and induces users to give tips, because the live broadcast content involves illegal interests, it is an unhealthy consumption behavior, and it is also a violation of the duty of loyalty of husband and wife, which not only affects family happiness but also violates public order and good customs. Therefore, the law stipulates that the other party can sue the platform and return the tipping money. This provision embodies the negative evaluation given by the law to the pathological behaviors that appear in modern society, and is the embodiment of the core values of socialism.
Judge Tian Song said that as for the nature of the live broadcast tipping, in judicial practice, it is believed that online users register as users of the live broadcast platform, use real money to recharge and exchange virtual props on the live broadcast platform, and thus enter the live broadcast room provided by the platform to watch the live broadcast and reward the virtual props to the anchor, and the user obtains value-added services through the virtual props and achieves a spiritual satisfaction similar to the game experience. This kind of behavior is not unilateral and gratuitous, but is actually a service contract, which is obviously different from a gift contract, so it is more cautious about the return of the reward amount.
Second, "Where one of the husband and wife gives a reward without the consent of the other party, clearly exceeding the general consumption level of the family, seriously harming the interests of the husband and wife's joint property, and the other party requests that the joint property be divided during the existence of the marital relationship on the grounds that the other party has squandered the joint property of the husband and wife, or where the party who gave the reward is given a small or no share during the division of the joint property of the husband and wife in a divorce, the people's court shall support it in accordance with law." ”
Lawyer Cao Lei explained that the live broadcast targeted by this situation does not contain vulgar information, and the platform cannot be claimed to return it. However, the squandering of the joint property by one of the spouses violates the spouse's right to know and the equal disposal of the property. This reward will be given to the party who gave the tip less or no share when the joint property is divided in the subsequent marriage or divorce.
For example, Judge Tian Song said that in a gift contract dispute case in 2020, the husband in this case began to watch the live broadcast in March 2016 and recharged and rewarded, and in the nearly three years to February 2019, he recharged 740,000 yuan to the live broadcast platform through four user accounts, and most of the virtual props exchanged were rewarded to the same online anchor. The court held that there was no gift contract relationship between the man and the live broadcast platform, and there was no contractual relationship between the man and the anchor, and his tipping behavior was only to send virtual props to the anchor, and the anchor did not obtain real money, nor could he possess, use, benefit and dispose of the virtual props, and only used it as a scoring symbol to evaluate the anchor's ability to drive traffic, so as to claim remuneration from the platform. Therefore, the woman's claim was rejected when the woman could not prove that the anchor's live broadcast content violated public order and good customs or that the man had an improper relationship with the anchor outside of marriage.
When there is no violation of public order and good customs in the live broadcast content or the reason for the tipping, the spouse of the tipper cannot directly request the anchor or the live broadcast platform to return the tip amount, but may claim to demand the division of the joint property of the husband and wife within the marriage, or claim that the other party divide the property less or no in the divorce.
After the analysis and interpretation of lawyer Cao Lei and Judge Tian Song, it is not difficult for us to find that the online tipping behavior of one of the husband and wife is aimed at different situations and the corresponding legal consequences. Whether the money for live broadcast tips can be returned depends on whether the live broadcast content of the rewarded anchor contains vulgar information such as obscenity and pornography to lure users to tip. If there are no violations of the live broadcast content and the rewarded anchor, then the other party can request the division of the joint property of the husband and wife during the existence of the relationship between the husband and wife, or claim that the other party divide the joint property of the husband and wife in the case of divorce.
In the program, lawyer Cao Lei and Judge Tian Song also reminded everyone not to laugh or wave their hands on the Internet in the live broadcast room for the sake of the anchor, the impulse of the moment destroys the trust and love between husband and wife, and is the happiness of a family.
In the Interpretation (II) on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China, we have also seen clear provisions on complex family relationships such as bigamy, sham divorce, division of property under cohabitation, and gift of property. These details not only affect the rights and obligations of family members, but also affect the happiness and harmony of each family. In this issue of Law School, Judge Tian Song of the Meilong Court of Minhang Court and Lawyer Cao Lei of Shanghai Shenjie Law Firm also interpret the application effect of real cases and how to better protect their legitimate rights and interests when encountering family law problems. Since the Judicial Interpretation had not yet been finalized at the time of the production of this program, we used the Draft for Comments to interpret it, and the final Judicial Interpretation shall prevail in the future.
Source: Minhang's official WeChat today