The Vicarious Liability Of Online Trading Service Providers

Our country has gained a mushroom growth of Electronic commerce of this decade, however, there are so many sham and shoddy commodities, and infringement develop rapidly at a lower cost and with a larger scale via the Internet. While the trademark proprietor and the copyright owner faced with the rampant infringement,online trading service providers, as the special subject of electronic commerce, obtain great benefits from the E-commerce transactions. In order to promote the healthy development of the E-commerce market, it is necessary to balance the interests of both parties. Application of the vicarious liability can adjust the interests of the parties and promote the supervision and management of the infringement, thereby, promote the healthy development of the E-commerce market. It is necessary to study the vicarious liability of online trading service providers in our country.This paper consists of three parts:The first part of this paper mainly discusses the concept, characteristics and scope of vicarious liability for comparative analysis, to explore the essence of the vicarious liability meaning and theoretical basis. This paper argues that vicarious liability is the concepts peculiar to Anglo-American law system, it's different from the responsibility for others in civil law system. The third person bear the responsibility based on the special relationship between him and the actor, which is called vicarious liability. It is different from the responsibility based on violation of the obligations for the actor and the victim.The most important characteristics of vicarious liability is the control relationship between the third person and the actor. Both continental law system and Anglo-American law system regard employer's liability as vicarious liability, but not as duty of guardianship. In the field of copyright, The United States develop the vicarious liability between the independent contractors. And they think that the application of the vicarious liability is also feasible in the network. This paper is based on the basis to study the vicarious liability of online trading service providers.In this paper, the second part mainly analyzes the origin and development of the vicarious liability of online trading service providers. This part through the analysis of the development of the vicarious liability between the independent contractors in American case law, to determine the components of the vicarious liability of onlinetrading service providers: the right and ability of control to the tort and the direct economic benefit from the tort. Through the comparative analysis of the case, we will find the control test means the actual control,and the direct economic benefit means that economic interests is a result of the infringement.The third part mainly analyze responsibility of online trading service providers in legislation and judicial practice, to confirm that our country has no rules about the vicarious liability of online trading service providers, so it is difficult to apply in the judicial practice. However, in some cases, online trading service providers has the condition and ability to bear vicarious liability, so it is necessary to establish.The fourth part, based on the analysis of the third part, put forward the following suggestions to establish the vicarious liability of online trading service providers:clear the legal status of online trading service providers, establish responsibility for multiple forms, as well as specific online trading service providers imputation principle of no-fault liability principle. And based on the situation of our country the vicarious liability of independent contractor apply to the field of copyright and trademark at the same time.