An Analysis Of Article 36 Of The Law On Tort Liability

Article 36 of Tort Law states network tort liability of network users and Internet Service Providers. This thesis focuses on analyzing this article and proposing some advice on basis of referring Regulation on Protection of the Right to Network Dissemination of Information and Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Cases involving Civil Disputes over Infringements upon Personal Rights and Interests through Information Networks.This thesis contains three parts.The first part is introduction, which states the practical significance, current research trend, and gives a brief look at the main content, and research methods. The final part focuses on conclusion that expresses great expectation on perfection of network tort, and acknowledgements that sincerely shows gratitude to my parents, teachers, classmates and friends for their selfless help.The second part has three chapters, altogether constitutes the main body of this thesis. The first chapter gives an introduction on conception, characteristics, subject and object of network tort. The second chapter has three sections, elucidating the specific system and deficiency of network tort. The first section elucidates the liability principle of network tort, by indicating that Article 36(1) is applicable to the principle of fault liability, while the "Notice" mentioned in the second paragraph is naturally means of claiming rights, thus it should be consistent with Notice and Counter-Notice rules regulated in the above Regulation and Judicial Interpretation. Moreover, the "Knowing" in the third paragraph includes "knowing perfectly well" and "should know". The second section discusses the methods of bearing liability, which according to Article 36(1), the network user and ISP might bear the direct tortious liability, however, the second and third paragraph indicates joint tort liability, rather than unreal joint and several liability or supplementary liability. The last section mainly analyzes the deficiency of Article 36.As the most important part of the thesis, the third chapter separately analyzes the measures for improvements. Firstly, Article 36 only proposes ISP as a vague conception that lacking operability in judicial practice, due to which the ISP should be categorized according to type of service, such as Internet Content Provider and Internet Technology Provider, the latter of which might bear the direct tortious liability, while those ISP providing storage space, research engine and hyperlink service should bear joint tort liability. Secondly, concerning the Tort Law and other regulations haven’t set rules on implementation of "Notice", nor have liability against the Counter-Notice or Error-Notice, it is of great necessity to set up those rules, together with simplifying the content of "Notice", establishing the "Notice-Counter-Notice-Delete" system and introducing it to guarantee mechanism, and taking the project threshold of Safe Harbor rules stipulated in US Copyright Law as to request the ISP fulfilling notification obligation and banning multiple infringers. Thirdly, since the "Expansion of Damage" cannot be quantized, it is proper to reserve time for rational measures demarcated by the arrival of the Notice, also the calculation methods of economic loss needs to be settled. Fourthly, as the "Knowing" contains "knowing perfectly well" and "should know", and the judgment of subjectivity relies on the judges without any reference in other regulations, the ISP’s fault could be testified through clarification of different types of works, performance, sound or radio recording, types of ISP, and types of solutions that ISP provides.