The Research Of The Tort Liability Of Shopping Mall In Counter Leasing

Counter leasing is one of the major operating modes that adopted by the shopping mall today,and the shopping mall leases counters to the retailer for running,aiming at exchanging the using right for rent.The operating mode provides convenience for consumers in shopping,and achieves win-win goals between the shopping mall and renter at the same time,so it has incomparable advantages over traditional operating modes.With the counter leasing of the shopping mall well developed,however,infringing cases occur frequently,and all the rights to access information,rights to fair dealing of consumers and copyrights,trademark rights,patent rights of the owners of intellectual property rights are violated.In such infringement cases,some infringed sue the shopping mall,making the tort liability of the shopping malls the focus.This paper reads relevant laws,analyzes scholars' views and compare the shopping mall with online trading platform provider,to study the tort liability of the shopping mall in counter leasing.There are four parts in this paper except introduction and conclusion:The first chapter is the reflection on an infringement case of the shopping mall.This paper reaches the conclusion that the court holds positive attitude to the tort liability of the shopping mall in practice through analyzing the focus and judgment of a typical infringement case of the shopping mall.Combining with the development status of the identification of tort liability of the shopping mall,this paper arrives at the existing problems,including the legal status and responsibilities of the shopping mall in the counter leasing,tort liability principles and composition elements of the tort liability.The second chapter is the analysis of the legal status of the shopping mall.This paper clearly defines the counter leasing at first,and then analyses and appraises the opinions of different scholars' about the legal status of the shopping mall,based on typical operation modes of counter leasing.At last,this paper concludes that the shopping mall is the lessor of the counter,managers,and service provider.The third chapter is the responsibilities of the shopping mall.This paper analyses and appraises the opinions of different scholars' about the responsibilities of the shopping mall,and explore the theoretical basis of the duty of care of the shopping mall,concluding that the shopping mall should have the responsibilities of prior restraint,reasonable care,and afterward remedy.And this paper make clear the judgment standard of each responsibility separately.The last chapter is the identification of the tort liability of the shopping mall.There are direct and indirect tort liability,and the tort forms are different in different circumstances of indirect tort liability.This paper analyses the allocation of tort liability between the shopping mall and counter tenant on the basis of relevant theories.According to the differences of the infringed and whether being the direct infringement,it respectively applies principle of no-fault liability,presumed fault liability,or principle of liability for fault to the identification.