Research On The Tort Liability Of Network Service Provider

With the development of network technology and the development of Internet +format,the public has changed from passive receivers to active implementers of the Internet behavior,and the information service providers have changed from traditional newspapers,books and other media to the network service providers with multiple intelligence,and their role positioning has had a significant impact.Under the network economy,there are also great disputes about the positioning and responsibility of network service providers.The provisions of Article 36 of the Tort Liability Law are too principled,there is no standard for detailed use,and there is no distinction between the ways of network infringement,and there is a lack of maneuverability in practice.Although the judicial interpretation of the Supreme Court classifies the network service providers into different types,there is still much controversy about the way they assume their responsibilities.This paper discusses the nature of network service providers and their liability in network infringement,points out the problems in current legislation and puts forward relevant suggestions.According to the difference of service content and control ability,this paper classifies network service providers into network content service providers,network technology service providers and network platform service providers according to their initiative,instrumentality and bearing characteristics.Based on the theory of network externalities,network service providers gain profits directly or indirectly through network infringement.The network application of security obligations points out that although network service providers do not bear strict liability,they have reasonable duty of care for network infringement,and their omission may still bear tort liability.This paper studies the rationality of network service providers' tort liability from a macro perspective.Starting from the specific infringement mode,this paper divides the infringement of network service providers into two parts: direct infringement and indirect infringement,and respectively discusses the principle of attribution and the way of responsibility assuming.Network service providers take fault liability for direct infringement and assume joint and several liability.The principle of liability for fault applies to the indirect infringement of network service providers.There are some disputes in theory and practice about the identification of the fault of network service providers.There is no theoretical basis for the joint and several liability of indirect infringement of network service providers,and itsscope of liability is refined.Through the judgment of China Judicial Documents Network and the theory,this paper expounds that the stipulation of joint and several liability of network service providers has policy orientation.The way of assuming responsibility makes the right of claim for compensation out of place and the network service providers bear too much responsibility.It also expounds the limitation of the rule of notice deletion in our country,and points out the submission by discussing the standard of active infringement network dissemination behavior.There are legal loopholes in the regulation of reciprocal communication.In order to improve the infringement system of network service providers in China,it is proposed to reconstruct the indirect infringement liability of network service providers,transform joint and several liability into supplementary liability,and establish the infringement user information disclosure system;define the deletion rule of notification as a defense to ease the contradiction between the fault rule;and establish the substantive provision standard of network information dissemination and the constituent elements of effective notification.