Research On The Duty Of Care Of Online Action Providers

With the popularization of the Internet and the growing number of its users,online shopping shows a rapid rise momentum in China. Despite repeatedprohibitions, infringements constantly occur, and quickly spread to the networkenvironment, violating the legal rights and interests of right holders, consequentlycausing disputes between online action providers and the infringed. The latter submitsuits to the court, alleging that online action providers should bear the duty of care toprevent the infringements. Due to the virtuality of the network and business model ofonline transactions, the courts have difficulty in dealing with the cases, which resultsin a variety of court decisions. Hence, this thesis starts from typical judgments of ourcountry, analyzes the existing problems of these cases, studies the representativecases of foreign countries, and accordingly proposes some correspondingsuggestions on our current laws and regulations.This thesis is divided into three chapters. Chapter one analyzes part of domesticcases, and concludes two problems present in our judicial practice. Then itintroduces current legal theory in our country, and explains the necessity for us torefer to typical findings and relevant regulations from America and European Union.Chapter two discusses the different origins of duty of care between commonlaw system and civil law system, studies typical cases in foreign countries, sorts outtheir different criteria and respective situations, and systematically expounds the rules, scope, consideration factors as well as respective emphasis adopted by thecourts, greatly contributing to the perfection of our legislation and judicial practice.Chapter three explains in detail about the status quo of our current legislation,analyzes the conflicts of rights and interests brought by online action providers, andraises three legislative improving measures. Finally, combining the actual situationof our country, this thesis makes a draft of specific provisions based on the Tort Lawand Trademark Law of the People’s Republic of China.