The Study Of Network Service Providers Tort Liability

With the development of new era, the level of economic and technological progress, increasingly, emerging Internet this new form of media occupies a more and more important position and plays an important role in our life and work. Because with the popularity of the Internet, so the way people lives and work style changed, many things become more convenient because of the application of the Internet. But we should dialectical think. Every coin has two sides. As the network brings us a lot of convenience, it also brings some problems, all kinds of network infringement events usually occurs, and it is easy for the Internet service provider which is as the service platform to want to protect their rights of the user which is as an infringer in nature. To speak frankly, due to providers take responsible to manage the network platform of information, so there is a lot of time infringes to the legal rights of Internet users for their behaviors in the network service, they mainly provide in the own business network services, at the same time, may violate the citizen right of privacy about the Internet users, legitimate copyright, citizens reputation and the legitimate trademark in the network service. If provider of infringement behavior occurs in the network service at random, the users whose legal right is violated by illegal behavior cannot get due compensation, which will produce varieties of adverse effects in the long time, but if all the infringement are undertook by the service provider, which may affect promoting technical level to improve and the initiative which provide better and more full service, as a result, it will cause adverse effect on the development of our country’s Internet industry in the future. So, we should properly deal with the infringer, the patentee and the relationship between the developing prospect of our country’s Internet, because it’s not only relate to our country’s protection of civil rights, but also it is associated with the development of the Internet in China and it will also effect on our country’s comprehensive national strength. "Tort liability law of the People’s Republic of China" in article 36, it made the norms as the form of law about the issue for the first time, which makes all parties who is on how to take the responsibility have a legal basis in the network infringement cases. The emergence of this norm reflects the science and technology mutual effect:the development of science and technology promotes the development of the law, the development of the law manage and standardize the science to make it develop better. However, because the law has a hysteresis characteristics by itself, and "tort liability law of the People’s Republic of China" in article 36 about the problem was made in specification of principle, only three law is not enough to clear network tort liability limit and subject scope, which make a lot of questions unsolved in the practice. As the analysis above, we can see service provider to undertake the question of tort liability that is necessary to get it relative attention and settle as soon as possible in the network.The article is based on the Internet service provider of tort liability as the research object, by combining theoretical research, practical investigation, using the literature material method, case analysis, comparative research and other research methods, coupling with investigation in person, considering network server from multiple aspects of tort liability. And through the tort liability of network service providers introduce and analysis. Moreover, on account of the relevant norms and the solution styles about the issue analyses and evaluates in other countries, hope to be able to get the experience from the foreign legislation, so as to provide theory to support for the legislation in our country, and provide a basis for judgment in the judicial practice of China. This paper is divided into five parts:The first part is the overview service provider and its tort liability in the network. This section describes the definition of service providers in the network, partition type and definition of tort liability.The second part is the outside of the legislation of tort liability of the network service provider. This section introduce and analysis relevant law on the outside of some typical countries and regions, such as the United States, Japan, the European Union, etc., and to evaluate the foreign related legislation.The third part is the service provider’s responsibility identification of network in our country. Introduce service provider’s imputation principles of tort liability, liability form, constitute elements, different service behavior of tort liability, and assume the styles of the tort liability in the network.The fourth part is service provider in the tort liability law presents situation and defect in our network. First introduce our country at present in the network service providers tort liability legislation present situation and the practice in the field of the status quo. And then introduce our country network the defects existing in the service provider’s tort liability. The first is in view of the network service providers tort liability in the aspects of the legal system is not perfect at present in our country,, the second is the network service provider’s imputation principle of applicable have drawbacks. The third is service provider on the different types of distinguish is unclear in different network. Because in the actual use of the rule of law is too general, the fourth is lack of practical maneuverability and the rule of law because of the defects, etc, in the network server of the illegal infringement behavior is difficult to be determined. The fifth is to analyze uniform in the network service provider of illegal responsibility to bear the way of the present situation and problems.The fifth part is on the fourth part points out the problems, and the solution of the targeted suggestions. The first is to make the basic law applicable on the Internet, to perfect legislation of network system, to perfect relevant procedural legislation also, thus the jurisdiction problem of network infringement cases in reasonable regulations; to analyze the law of development of the infringement on the network, to develop a prescient countermeasures perfect law system. The second is to clear on the type of the network service provider, The third is to distinguish the different network service provider in the imputation principle of advice. The fourth is to clear network service providers to support to fulfill the duty of proper attention, the responsibility of the neutral position, information confidentiality selection and to assist in the investigation of responsibility. The fifth is to propose for network service providers in the way of the illegal infringement liability, which can be by means of limited compensation responsibility, and the compensation is not to find in the network service provider. But first is directly responsible to assume responsibility, which can bear completely in its cannot afford or not. The Internet service supplier compensate according to their own fault degree.Hope to target Suggestions makes the thesis more practical, in order to present the network service provider’s illegal infringement responsibility help.