Research On The Civil Liability Of The Operators Of E-commerce Platforms

Since the implementation of e-commerce law on January 1,2019,it has been widely concerned and discussed by legal theory and judicial practice departments.As a special law that fills the gap in the settlement of e-commerce disputes,the e-commerce law provides a legal basis for judicial practice.In previous cases of legitimate e-commerce disputes between operators on platforms and consumers,there were no clear provisions on whether operators of e-commerce platforms should fulfill their obligations and bear civil liabilities.In judicial trials,people's courts make judgments according to the provisions on e-commerce in the tort liability law,the protection of consumer rights and interests and other legal norms.Now,article 38 of the e-commerce law stipulates that operators of e-commerce platforms shall bear joint and several liabilities if they fail to take necessary measures due to non-objective factors.Operators of e-commerce platforms should assume "corresponding responsibilities" if they fail to perform the audit obligation or safety guarantee obligation according to subjective intention or unintentional circumstances for goods or services involving the life and health of consumers.This kind of regulation provides clear basis for judicial trial activity.This paper expounds the legislative formation process of article 38 of the e-commerce law,including legislative background,legislative purpose and legislative significance.The basic connotation,contractual relationship,legal status and legal obligations of e-commerce platform operators involved in article 38 of the e-commerce law are analyzed and discussed in detail.There are three components of legal norms,namely,assumption,treatment and sanction.Article 38 of the e-commerce law has two sections,each of which has its own constituent elements.There are two presumptive elements in paragraph 1.First,the operator of the e-commerce platform knows or presumes to know,and second,no necessary measures have been taken.Satisfy these two points at the same time,that is,meet the assumed factors in the first look.The handling factor of paragraph 1 is that the operator of the e-commerce platform shall take necessary measures to fulfill the obligation of taking necessary measures.The sanction factor in paragraph 1 is the breach of the obligation to take necessary measures,and the operator of the e-commerce platform shall be jointly and severally liable.The presumptive factors in paragraph 2 are as follows: first,goods or services that involve the life and health of consumers;second,failure to verify the qualification of operators in the platform or fail to protect consumers;third,necessary damage to consumers.The handling factor of paragraph 2 is that the operator of the e-commerce platform performs the audit obligation or safety guarantee obligation.The sanction factor in paragraph 2 is breach of audit obligation or security obligation,and the operator of the e-commerce platform shall assume "corresponding responsibilities".Here,"corresponding responsibility" is a compromise expression,its purpose is to temporarily calm its theoretical debate,put aside the dispute.However,this vague expression makes it difficult to understand and apply judicial work,so it is necessary to clarify the responsibility type of "corresponding responsibility".This paper holds that if the audit obligation is violated,the "corresponding liability" shall be "joint and several liability".In case of breach of security obligation,"corresponding liability" shall be regarded as different forms of liability according to different subjective factors of operators of e-commerce platforms.In case of subjective intention,"corresponding liability" shall be regarded as "joint and several liability".If the operator of e-commerce platform does not intend to do so,"corresponding responsibility" shall be deemed as "responsibility by share".China is not optimistic about the judicial status of civil liability investigation for e-commerce platform operators.The main problems are unclear liability types,single liability investigation methods and regional differences.The main reason for the unclear liability type is that the "corresponding liability" in paragraph 2 of article 38 of the e-commerce law is vague,which increases the difficulty of judicial work.The main reason for the single way of accountability is that China's new judicial settlement mechanism for solving e-commerce disputes has just started and is not experienced enough.It needs to be improved in many places and cannot be promoted nationwide in a short time.Most places in China still need traditional,offline people's courts to hear e-commerce disputes.The main reason for the regional difference is that developed regions have a better understanding and application of laws than general or less developed regions,coastal regions,inland regions and southern regions and northern regions,and the judicial status of civil liability investigation for e-commerce platform operators is better.In order to better implement and apply the provisions of article 38 of the e-commerce law,it is necessary to improve the e-commerce platform operators who violate civil obligations to pursue corresponding civil legal liabilities.The author proposes several improvement measures with reference value from five aspects: legislative purpose,judicial application,way of liability investigation,consciousness of consumers' rights protection,and operators of e-commerce platforms themselves.Of course,measures or means to improve the civil liability investigation of e-commerce platform operators in China are by no means limited to the five aspects mentioned in this paper.More effective measures or means need to be continuously discovered and confirmed in the process of civil liability investigation of e-commerce platform operators.