The Implementation Of The Laws On Network Infringement In China

Infringement refers to the perpetrator infringing upon other’s personal rights orproperty rights because of fault or acting against the regulated obligations by the wayof acting or omitting, and then bearing the legal consequences such as compensatingthe damages under the law. Network infringement is a special case of infringement.Network refers to the fully functional network software, i.e, network communicationprotocols, information exchange and network operating systems etc, which connectsthe multiple computer system of different geographical positions and havingendependent functions by communication protocols and circuitries so as to achievethe system of sharing network resource. Infringement is the civil juristic behavior ofthe perpetrator committing the acts against civil rights of the state, collectives orindividuals as a result of bearing civil liability under the law. Firstly, it can beclassified into the infringement of network users, network service providers and othersubjects of infringement from the criteria of infringement subjects. Secondly, it can bedivided into network infringement of personal rights and network infringement ofproperty rights according to the object of infringement.Thirdly, it can be categorizedas direct infringement imputation and indirect infringement imputation from thecriteria of the commitment of infringement liability.The imputating principle of network infringement generally identifies the singleprinciple of imputation. Some countries have advocated the application of faultimputation responsibility principle, some have conducted the principle of strictimputation, while single imputation principle is difficult to be applied to China’sactual situation. Therefore, this paper brings forward that China should mainlyimplement the fault liability with the supplementation of strict responsibility, and thegeneral network infringement should apply to the principle of fault liability. Thesubjects of special responsibilities and network infringement directly actualized bynetwork service providers in the Infringement Liability Act in China should apply tothe principle of strict liability, so as to combat the infringement and protect the legalrights of obilgee.The section36in Infringement Liability Act of China regulated the subjects ofnetwork infringement are the network users and network service providers, but it didnot define the scope of the network service providers, resulting in the difficult masterand operating in the process of application. This paper attempts to clearly define thescope of network service providers by comparing the relevant regulations of thesubjects of network infringement in foreign laws mainly involving network service providers who provide content and network serving people who provide medium, andalso defines different responsibilities by analyzing different subjects.The section36in Infringement Liability Act also drew on the Safe Harbor Rulesof America, regulated the limitations of network infringement liability accordingly,however, it did not clearly define ‘prompt measures’ and ‘knowing’ etc, as a result ofthe difficulty of mastering and operating in the application. This article particularlyanalyzed these problems and shortcomings by determining the definitions of‘anti-notification rules’,‘assuring rules’,‘prompt measures’,‘knowing’ etc.and putforward the solutions in order to provide some help and support to the implementationof the network infringement laws.