| In accordance with article 36 of the Tort Liability Law provides the direct responsibility of the network service provider,the responsibility shall be taken in violation of the "notice-delete" obligations and know-delete "obligations.Although the law has detailed regulations,but the practice always varies.In legal practice,the subject positioning of network service providers are complicated.How to determine whether the network service providers shall bear the responsibility really need the judges to take strict consideration when facing different actual situations.In this essay,through a case study of "suicide pact via QQ",the author will introduce the basic facts of the case and analyze its main points in dispute,then analyze the legal basis of trial and the results by means of careful study so as to make the clauses to be properly applied in the process of judicial practice in the future instead of being misused.At the same time,through the study of the case,the author also puts forward the prospect of the article 36 of Tort Liability Law.This essay will be presented in five parts:The first part,set forth the introduction of the case and the main points in dispute.In this part,the author will introduce the cause of action,the basic facts,the court trial situation and trial basis of "suicide pact via QQ" in detail,and make a good preparation for the following analysis.In addition,some of the points in dispute in this case are briefly set forth which leads to the main part of the article.The second part,analyze issues in relation to the focus of dispute.This part is one of the key parts of this essay,which elaborates and analyses the focus of dispute from the perspective of jurisprudence and academic theory instead of from the perspective of judicial practice.Firstly,the network service providers will be classified on the basis of the nature of subject;it is better to study when limiting the scope of the subject and making sure that Tencent in the case is an automatic transmission service provider.Secondly,it provides theoretical basis for the automatic transmission service providers to assume their responsibilities when conducting the acts of infringement,which respectively including subjective basis,control force basis and the risk integration basis.The third part,analyze the thinking of the tortious liability Tencent has assumed.This part is another key part of this essay,the author analyzes the legal basis of liability of automatic transmission service providers.Firstly,Tencent should not objectively use its control force.Secondly,Tencent should not make antecedent supervision of this information;Finally,there was no causal relationship between Tencent's nonfeasance and damaged result.The fourth part,make divergent thinking about Tencent's shares of liability that was sentenced by the court.In this case,the court made the judgment regarding each party's liability according to the degrees of fault.The basis of the judgment is conflict with the liability form provided in article 36 of Tort Liability Law.In this part,the author will deeply analyze the “joint liability” of section 2 and section 3 of article 36.The fifth party,analyze the evaluation and analysis of court's trial and the liability of the automatic transmission network service providers.Firstly,the author combines the theoretical analysis and the elements analysis to evaluate and analyze the legal basis of court's decision and the final results.Secondly,deeply think about article 36 of Tort Liability Law,especially the conditions and forms of liability of the network automatic transmission service providers,on the basis of the abovementioned evaluation and analysis,and put forward suggestions regarding the perfection of legislation.Through the above-mentioned five parts,the author is capable of taking a thorough analysis of the " suicide pact via QQ",and hope this essay will have a guiding significance for infringement cases regarding the subject as automatic network transport service providers in the future. |
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