| Online trading is a new way of trading model which is developed from the technological progress of traditional trading methods.With the advancement of technology and the Internet,using technical means to provide operators and consumers with online trading venues,the online trading platform plays an increasingly important role in online shopping,including JD.COM,JMEI and TMALL as the representative of the B2C model and Taobao as the representative of the C2C model,etc.With the advantages of convenience,fast,wide choice that online shopping brings for people,it also leads to a flood of online selling fake goods phenomenon.To governance fake,it is not enough to rely on consumers and other rights activists to maintain rights afterwards only.It is more important that the online trading platform service providers improve self-discipline,strictly regulating review and regulatory obligations of the platform side,clearing the scope of online fakes,establishing the authority of the fake identification system and improve the responsibility system of the online trading platform.Therefore,this paper focuses on the issues of tort liability of online trading platform under selling fake goods.Essentially,it solves the problem of how to protect the rights and interests of consumers and other rights subjects in the case of the continuous development of the transaction mode to maintain the orderly conduct of online transactions.This paper is divided into four parts:In the first part,the author classifies the existing network trading platforms according to the different business model and service model.It is only a kind of industry standard to divide online trading platform according to the business model.It has actual legal significance for identifying its legal nature,duties and responsibilities to divide the network trading platform into two major categories:providing basic services and providing value-added services.Based on this,the legal nature of the network trading platform is different in different service models.The author considers that when the online trading platform provides basic services,its legal nature should belong to the "network service provider",and when the online trading platform provides value-added services,it will be regarded as "counter lessor".The second part,according to different transaction mode and the different legal status of the online trading platform,the author analyzes the prior review obligations that the trading platform should bear in the network,the regulatory obligations and provisions for the online trading platform from network planning about selling fake goods.In order to protecting the legitimate rights and interests of consumers and other rights bodies,the obligations of the network transaction platform that providing value-added services will inevitably increase due to the transformation of its role.The third part discusses what responsibilities that the platform should bear when the subject of right suffers damage from the behavior of selling fake goods on the trading platform.The paper distinguishes the imputation principle of tort liability of the online trading platform under different modes,and analyses the concrete manifestation of the constitutive requirements of tort liability in selling fake goods online,which includes injuring behavior,damage fact,causality and fault.In addition,the author will analyze the application of the exemption clause,which is the rule of "notice--delete".The fourth part,in view of the imperfections of the network platform counterfeiting system at present in our country,the author puts forward some reasonable suggestions with regard to regulating the market access system,strengthening supervision and management,improving the accountability mechanism of the third party trading platform in the system of fighting fake goods online. |
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