Research On Indirect Tort Liability Of Internet Service Provider

This thesis mainly studies on internet service provider’s indirect tort liability, based on the background of the legislation and practice of indirect tort liability of internet service provider of China. Use the formation of liability as the basic research approach, and comprehensively use the method of empirical and comparative method from the basic principle of law to reflect the shortage of internet service provider’s tort liability in theory and practice, to sketch completely the outline of theoretical basis of liability, principles of liability, constitutive requirements of liability, responsibility of liability from the basic of the formation of liability of the occurrence of liability,.the classification of liability, the consitution of liability and the commitment of liability.The indirect tort liability of internet service provider has its particularity. First, the core rules of internet service provider’s indirect tort liability located in the fourth chapterthe “special provisions of liability’s subject” in“Tort Law of People’s Republic of China”(following short for “Tort Law”) showing its difference of subject. And internet users’ tort services as the premise of the internet service provider’s indirect tort liability, So the liability has the charactor of binary interactive. Second, the article thirty-sixth of “Tort Law” showing it’s joint liability of internet service provider’s indirect tort liability, but the form of liability of other indirect tort or vicarious liability are not joint liability, so there’re differences of essential or the legislative intent between internet service provider’s tort liability and other indirect tort liability. Third, comparing to the normal indirect tort liability, the regulation of method is more complicated as there are three different object of right in indirect tort liability of internet service provider for the intellectual property rights, personal rights and property rights. Fourth, with the charactor of technical neutrality of internet service provider in the network environment of indirect tort occurred, the commitment of liability is more subtle comparing to other indirect tort liability.So the purpose of this paper is divided into three levels: the first level, to slove the theory and legislation of II indirect tort liability of internet service provider of China; the second level is to provide reference for the construction of the theory of indirect tort liability; the third level, provides refenrences for the legislation of “Tort Law”.Fault theory in general theory only has the function and status of doctrine of liability fixation, but not the ability of explaination to the basic theory of indirect tort liability of internet service provider. Control theory, social total cost control theory, the compensation theory have some explanatory power respectively, but also have their limitations. The combination of three joint together can be the theoretical basis of indirect tort liability of internet service provider.“Tort Law of China” and “Regulation on the Protection of the Right to Communicate Works to the Public over Information Networks”(hereinafter referred to as “Regulation on the Protection of the Right of Communication”) respectively with the origin of civil law and American law, respectively have the doctrine of liability fixation of presumption of fault and fault. Apply the notification of “Regulation on the Protection of the Right of Communication” to property, apply the notification of third paragraph of 36 th of Tort Law of China to personality right and property right and apply the “know” of the third paragraph of 36 th of Tort Law of China to all object with the consideration of doctrine of liability fixation of legal norm, attributes of the object and contents of legal norms.There are two methods of proof as “know” or “should known” and notification in the fault of subjective states in component of indirect tort liability of internet service provider. The content of act are not only not to delete, disconnect, shielding the link in time, but also not to fulfill the disclosure obligations, not to install the standard protective measures, not to cancel the account of the direct infringement. There’s no need to discuss the consequence and damage of component for they have no particularity.Use the related theory in basis theory of liability as the method of determination of indirect tort liability of internet service provider. The liability form of indirect tort liability of internet service provider is not joint liability as in general view or in legal norms but supplementary liability. The method of liability are seperate as different objects for intellectual rights, personality rights and property rights. The scope of liability can range from two dimension compositions, one composition is the damage of the infringed and another is the interest gained by internet service provider by internet user tort. Unjust enrichment can adjust the imbalance of interests caused by the problemof fault proving of indirect tort liability of internet service provider, specifically, it suits the case of impossibility of proving the fault of internet service provider but get interest from the tort of internet user to improve the legal effect of the supplementary liability.The innovation of this paper is as follows, first, using systematic thinking to organise acedamic theories on the functional use of forming indirect tort liability of internet service provider, to overcome the problem of weaken the foundation of theory by vulnerability of scattered explanation and the conflicts between theories. Second, found the non-uniformity reality of our legislative of indirect tort liability of internet service provider of China by exploring and comparing the source of present law, as one is principle of presumption of fault and one is fault principle, using method of dogmatics of law of different liability principles to divide the applicable boundary, coordinating the operation mechanism between legal norms and building platform for acedemic discuss. Third, using the binary relationship of fault and obligation to clarify the formation mechanism of fault in component and to supply the composition of the component. Fourth, falsify the form of liability is joint liability and justify the form of liability is supplementary liability of indirect tort liability of internet service provider, and overcome the randomness of theory and put coordination of system of law into considertation. Fifth, divide scope of liability to two different ways by the core of the right, not only put damage to the scope of liability and also put interest too. At the same time, facing the imbalance of interest caused by the problem of fault certification of indirect tort liability of internet service provider, use restitution of unjust enrichment to supply the supplement liability, and determine the applicable situation and cometing issues of restitution of unjust enrichment and tort liability to improve the legal effect of tort liability.