Research On The Infringement Liability Of E-commerce Platform Operators For Breach Of Security Obligations

With the vigorous development of China's e-commerce industry,there are endless cases that damage the legitimate rights and interests of consumers.E-commerce platform operators,operators in the platform and consumers are the main participants in e-commerce activities.E-commerce platform operators enjoy the operating benefits of e-commerce platforms,and have cost advantages in effective control of e-commerce platforms and in preventing danger or damage.Article 38 of the Electronic Commerce Law stipulates that e-commerce platform operator is the owner and manager of the network trading platform and has the obligation of security.As for the nature of security obligations,there are legal obligations,collateral obligations and contractual obligations in academic circles.In the field of tort liability law,security obligations belong to legal obligations.The responsibility of e-commerce platform operators for breaching security obligations is based on the premise that e-commerce platform operators violate security obligations.It includes two aspects: one is to determine the scope of security obligations of e-commerce platform operators;the other is to identify violating security obligations.Specifically,the security obligations of e-commerce platform operators should be within a reasonable limit,which should be considered from the two dimensions of predictability and risk sources of obligors.To judge whether the e-commerce platform operators violate the security obligations,we can adopt legal standards,contract standards,industry standards,good father standards,protected object standards and prevention cost standards.Secondly,the operator of e-commerce platform should take the fault liability as the principle of liability for breach of security obligations.The illegal judgment and fault judgment of the e-commerce platform operators for breach of security obligations should be carried out separately.When they fail to fulfill their security obligations,their fault should not be directly identified.Finally,e-commerce platform operators have to satisfy the causal relationship between their actions and damages when they are liable for breaching security obligations.Generally speaking,the acts of e-commerce platform operators do not directly affect the victims,nor can they directly lead to the occurrence of damage consequences.However,their inaction to fulfill their security obligations provides indirect reasons for the occurrence of damage consequences,therefore,there is an indirect causal relationship between the omission and damage of e-commerce platform operators which fails to fulfill its security obligations.In view of the information asymmetry between consumers and e-commerce platform operators,the standard of causal relationship proof of consumers should be reduced appropriately.There are two problems to be solved in the responsibility of e-commerce platform operators for violating security obligations.One is the responsibility form of e-commerce platform operators,operators in the platforms and the third parties,and the other is the scope of responsibility of e-commerce platform operators.The second half sentence of Article 38,paragraph 2,of the Electronic Commerce Law stipulates that the responsibility of e-commerce platform operators for breaching security obligations is "corresponding liability",while the responsibility of security obligors stipulated in Article 37,paragraph 2,of the Tort Liability Law is "corresponding supplementary liability".By contrast,the former only stipulates the responsibility of e-commerce platform operators,but does not specify the responsibility form of e-commerce platform operators,operators in the platforms or the third parties.The forms of liability for breach of security obligations of e-commerce platform operators should meet the provisions of the Tort Liability Law on the allocation of liability between security obligors and direct infringers.Generally speaking,the subjective state of violation of security obligations by e-commerce platform operators is negligence.If they intentionally violate security obligations and constitute joint infringement with operators in the platforms or the third parties,they should bear joint and several liability.On the premise of distinguishing the intent or fault of the operators in the platforms or the third parties,when the operators in the platforms or the third parties are at fault,the e-commerce platform operators should assume the share responsibility;when the operators in the platforms or the third parties are intentionally,the e-commerce platform operators should bear the corresponding supplementary responsibility.As for the scope of liability for breach of security obligations by e-commerce platform operators,the scope of "corresponding supplementary liability" should be explained when the operators in the platforms or third parties are subjectively deliberate and the e-commerce platform operators are subjectively negligent.This paper argues that in the third party intervention infringement,the scope of responsibility for breach of security obligations of e-commerce platform operators should be considered comprehensively from its fault,causal force and other factors.Whether the e-commerce platform operators have the right of recourse and the scope of recourse after assuming the responsibility of violating security obligations.Article 6,paragraph 2,of the Interpretation of the Supreme People's Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury confirms that the security obligor has the right of recourse to the direct infringer after assuming the responsibility of security obligation.Although the "Electronic Commerce Law" and "Tort Liability Law" have not denied this,the legislative blank can not be used as a reason to deny the right of recourse of the e-commerce platform operators.This paper holds that the e-commerce platform operators should be affirmed to has the full right of recourse to the operators in the platforms or the third parties after assuming the corresponding supplementary liability.In this way,the same effect that e-commerce platform operators don't need to bear liability for compensation when the operators in the platforms or the third parties are able to compensate the victim can be achieved.