■ Observers

Judicial adjudication is also subject to the consideration of whether it is "fair and reasonable" and whether it violates "public order and good customs".

Recently, "Douyu claimed 8000 million from a number of anchors" has once again attracted attention. According to reports, as early as July 2020, a number of media reported that Douyu launched a claim against a number of anchors on the grounds of breach of contract. Three years later, the relevant claims are still continuing, and "most of the victims of the claims are from college students".

In fact, if the anchor is an adult, the specific identity of the subject of the claim that the media focuses on is not "special" in law, and it is difficult to use it as a basis for exemption from liability. If the contract itself is illegal, regardless of whether the anchor is not deeply involved in the world or an old fritter in the industry, he has the right to defend against the illegality of the contract. Vice versa.

Some onlookers sympathize with the accused anchor, which is not difficult to understand. However, the platform's series of "sky-high claims" against anchors also adapts to relevant laws. A contract is an agreement between equal subjects based on their own autonomy, and both parties should be cautious about the signing of the contract.

In recent years, the get-rich-quick cases of top anchors have repeatedly appeared in the field of public opinion. This kind of public opinion rendering has made many people moved, hoping to improve their living conditions through live broadcasts.

Judging from some closed cases disclosed by the media, there are indeed anchors who have earned a lot of income due to live broadcasts, such as an anchor and his guild have earned more than 295.<> million on a certain platform. Because the anchor did not fulfill the contract, he switched to other video platforms, violating the prohibitions of the contract, and then the anchor suffered a sky-high claim.

These details of the judgment document prove that at least some of the cases are still within the scope of normal contract disputes. The conclusion of the contract should follow the five principles of equality, voluntariness, fairness, good faith and good customs. If there is no statutory reason, the judiciary cannot support a party to breach the contract and jump to a competitor's house to engage in live streaming of the same content.

Some media reports pointed to the reasonableness of the live broadcast duration stipulated in the contract. For example, according to the standard contract of an organization, the minimum number of effective live broadcast days per month is 24 days, and the minimum effective live broadcast duration per month is 120 hours. There is 1 exemption opportunity per year. If it is exceeded, all expenses of the month (all fees such as platform signing fee and gift revenue sharing involved in this agreement) will be 0, and "Party B (anchor) shall pay Party A (guild) 500 million yuan in liquidated damages".

The calculation of workload and income is the core content of the anchor contract, and both parties should be clear and clear. If it is true that it cannot be done for the specified time, and it is impossible to reduce the workload through negotiation, not signing is the best option.

Of course, in reality, the so-called "sky-high claims" are just a gimmick in most cases, and the plaintiff's claim is not the final adjudication result. It is not unheard of cases of "claiming hundreds of millions of dollars and awarding thousands". Even if the "sky-high liquidated damages" written in the contract are written in black and white, in judicial adjudication, they often have to be considered whether they are "fair and reasonable" or whether they violate "public order and good customs".

The Civil Code stipulates that if the agreed liquidated damages are excessively higher than the losses caused, the people's court or arbitration institution may appropriately reduce them at the request of the parties.

From this point of view, in addition to the emotional controversy in this matter, the specific content of the dispute about betta fish should also be paid attention to. After all, in order for individual cases to play the greatest preventive and warning functions, timely adjudication reasoning and post-judgment interpretation are also essential.

□ Wang Gu (Legal Scholar)

(Beijing News)