Reflection On The Legislation Of Joint And Several Liability Infringement By Network Service Providers

With the rapid development of electronic information technology,the Internet has become an indispensable part of people's daily life,but when people enjoy the convenience of science and technology,All kinds of network infringement acts are also like cancer,which is growing frantically.How to remove the cancer and ensure that the network can better serve the life of the public and realize the network service provider better? The balance of interests among network infringing users and network infringed users has become an important aspect of the regulation and control of network legislation.In fact,China has long had a series of legislation to regulate this.The provisions of Article 36 th of the Tort liability Law The joint and several liability of network service provider torts is more controversial in academic circles.Based on this,this paper will start from the provisions itself,combine the theory dispute and judicial practice,draw lessons from the beneficial experience of foreign countries.This paper tries to find out the problems existing in the legislation of the joint and several liability of network service providers,and puts forward the corresponding consummation scheme.This paper is divided into three main parts:The legislative basis for the joint liability of network service providers lies in joint infringement,however,whether from the joint tort necessary for the establishment of the intention of contact,The tort liability law itself,or from the point of view of the tort and the result of damage,the behavior of the network service provider can not establish joint infringement.Some scholars have applied the viewpoint of policy considerations to explain the legislative establishment of joint and several liability.However,this legislative approach to fill in the losses of victims by passing on the risk of irreparable damage to the network service providers is in fact In the case of mislocating the network service provider,excessive protection of the rights and interests of the infringed users leads to the imbalance of the interests of the three subjects of the network,which violates the fairness and justice pursued by the law.The dilemma of the judicial application of network service provider's tort and joint liability lies in the following difficulties: first,after the network service provider assumes joint and several liability,However,the right of recourse is often difficult to realize.In this case,the network service provider actually becomes the bearer of full responsibility.Secondly,in the administration of justice,whether the victim,the adjudicator or the network service provider itself,No emphasis has been placed on the application of joint and several liability,which leads to the fact that the network users who commit network infringement are ignored.Finally,in the administration of justice,the court is unable to apply the rules of joint and several liability system In order to calculate the amount of compensation for tort damages,other provisions of law are often adopted as the basis of calculation,which makes the provisions of joint and several liability to be circumvented in the application.The existence of the above predicament not only makes the legislative purpose impossible to be realized,Moreover,it further intensifies the imbalance of the subject's interests and damages the fairness and justice of the law.The third part: the perfection of tort liability system of network service provider.The ultimate purpose of legislation is to achieve fairness and justice,and the way to achieve this goal is to ensure the balance of interests of all parties.The application of the joint and several liability of network service provider leads to the imbalance of the interests among the subjects.Therefore,only with the principle of balance of interests as the guide,distinguish the tort liability form of the network service provider,and set up the specific way of liability.Only by adding the tort liability of network service provider and further perfecting the relevant details of the legislation can the legislative aim of protecting the rights and interests of the victims and reducing the occurrence of the infringement be realized.