Research On Duty Of Care Of Online Trading Platforms Providers

In the era of "Internet plus",the online trading volume and turnover of online transactions have increased exponentially,among which the transactions on the network platform play a dominant role.Due to the widespread nature of infringing subjects,geographical dispersion,and anonymity of online platform transactions,disputes arising from online platform transactions are often litigated against online transaction platform providers.The online trading platform provider should assume a reasonable duty of care,mainly for the following reasons:first,as a special legal subject,the provider of the online trading platform also has the triple identity of the owner,manager and operator of the platform,and has the ability to control risks;second,requiring network trading platform providers to assume reasonable care obligations is conducive to reducing management costs and rights protection costs,preventing laissez-faire infringements due to profit,and conforming to the principle of unification of rights and obligations;third,the particularity of infringement of online trading platform also brings the realistic demand of undertaking the duty of reasonable care.Providers of online trading platforms should bear a reasonable duty of care not only for the protection of the legitimate interests of consumers and relevant rights holders,but also for the purpose of regulating online trading behaviors and promoting the sustainable development of online trading.At present,the duty of care of online trading platform providers has not been clearly defined in legislation,the regulation of duty of care is still limited to the application of "safe harbor" rule and "red flag" rule,at the beginning of the industry development,this is of great value to promote the development of emerging industries and network technologies,but now it has become a"protection umbrella" for infringer to a certain extent.The following problems exist in the legislation:first,the legal status of the provider of the online trading platform is unknown,and the legal status of the provider of the online trading platform is the basis for determining the distribution of rights and obligations and responsibility.Second,the scope of the duty of attention is unclear.The provisions of the duty of attention are scattered in the laws of various departments,and there are no provisions on the obligations of security guarantees and pre-examination of intellectual property rights.Third,the implementation mechanism is inadequate.A reasonable implementation mechanism is the institutional basis for incentivizing and promoting providers of online trading platforms to actively perform their obligations of attention.Fourth,the liability mechanism is ambiguous.Under the "safe haven" and "red flag" rules,the limitation of liability caused by the concretization of fault liability is hidden.Based on the above questions,it should be improved from the following four aspects:first,the legal status of the online trading platform provider is defined from the two different legal relationships of the online trading platform provider and the maintenance of market order.Not only can it be compatible with the multiple identities of online trading platform providers in different legal relationships,but it can also provide theoretical support for setting corresponding duty of care from different dimensions.Second,according to the time when the duty of care occurs,it is divided into the duty of attention before,during,and after the event,and according to whether the provider of the online trading platform directly profited from the infringing commodity transaction,whether the content recommendation was implemented for the infringing commodity,and whether it actually participated factors such as the transaction link are reasonably divided into the scope of duty of care.Third,explore feasible fulfillment mechanisms to constrain and motivate providers of online trading platforms to actively perform their duty of care.Fourth,refine the liability mechanism that violates the duty of care,and use the duty of care as a standard for measuring negligence,and seek a balance of interests between the providers of online trading platforms,operators within the platform,and consumers.Improving the duty of care of online trading platforms providers is conducive to protecting and safeguarding the legitimate rights and interests of consumers and intellectual property owners,as well as standardizing online trading behaviors.At the same time,it also plays a reference and promotion role in improving China's legal system of duty of care,online transactions and the healthy and sustainable development of the market economy.