數位經濟時代之信任服務──論多層次傳銷管理

Trust Service in Digital Economy Era: With a Reflection in Electronic Document’s Regulation of Multi-Level Marketing Supervision Act

在數位經濟時代內，廣泛運用電子文件與電子簽章之信任服務已為常態，除歐盟立法規範成員國承認其法律效力等同紙本書面與簽名印文、與數位貿易相關的國際協定也多有相同或類似約定。然多層次傳銷管理法第13條規定多層次傳銷事業應與傳銷商締結書面參加契約，且此書面不得以電子文件為之。同法第16條第3項亦有此類限制性規定。
值此科技發展時代，我國現行多層次傳銷事業與傳銷商之書面參加契約仍限制電子文件之使用，似有討論維持或調整之必要。本文擬分由學理與實務，透過蒐研國內外法規與實務資料，如歐盟eIDAS規則、司法院大法官解釋，檢視公平會、傳銷事業及傳銷商三者間之關係，俾供未來研議或規範精進，以符數位經濟時代與便民服務等需求。

In the era of the digital economy, it is widespread and normal to use electronic documents and electronic signatures. Many jurisdictions have planned to build digital government or digital communities to facilitate people’s life and promote technology development. However, Article 13 of the Multi-Level Marketing Supervision Act stipulates:“A multi-level marketing enterprise shall enter into a participation contract in writings with that who intends to participate in the plan or organization, and the multi-level marketing enterprise shall give the participant an original participation contract. The writings referred to in the preceding paragraph may not be in the form of an electronic document.”The article above limits the use of electronic documents in order to“implement the notification obligation of the multi-level marketing business to the distributors, and make the relationship between the rights and obligations of the two parties clear.”In addition, Article 16 also rules:“A multi-level marketing enterprise recruiting a person with limited capacity to be a participant shall first obtain the written consent from the legal representative of such a person and also attach the said written consent to the contract. The written consent referred to in the preceding paragraph may not be an electronic document.”The legislative reasoning presents: In consideration of the security and authenticity of electronic documents and that the concept of electronic signature has not been popularized by the people, it is more favorable to restrict electronic documents for protecting the rights and interests of the actors.
The multi-Level Marketing Supervision Act in Taiwan doesn’t allow written consent of electronic documents or records, while the EU Regulation on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation) has entered into force on 17 September 2014 and applied from 1 July 2016. The eIDAS Regulation ensures that people and businesses can use national electronic identification schemes (eIDs) to trade privately or to access public services online across EU countries. In the eIDAS Regulation, electronic signatures, qualified digital certificates, electronic seals, timestamps, and other proof for authentication mechanisms are defined as trust services and shall be recognized as having the same legal status as the traditional paper. The aim of eIDAS is to create a predictable regulatory environment in which businesses, citizens, and public authorities can carry out secure and seamless electronic interactions.
Taking eIDAS Regulation as an example, this paper tries to present the modern trends of the international community in the Digital Economy Era. Furthermore, by collecting and analyzing relevant judgments and studying the documents published by foreign and national competent authorities, such as the Republic of China Constitutional Court Reporter Interpretations and the decision of the Fair Trade Commission, this paper tries to analyze the relationship between Fair Trade Commission, multi-level marketing enterprise and its participants. This paper also discusses the legal effect of the limitation of electronic documents and hopes to present useful legal advice for legislation amendment, aiming to fit the need for public convenience and technology development in the Era of Digital Economy.