Research On Constitutive Requirements Of The Infringement Of Information Network Dissemination Rights

At present,China's legal norms on the information network dissemination are on the premise of General Principles of Civil Law,Tort Liability Law,and on the basis of Copyright Law,which specifies in administrative regulations and judicial interpretations such as Information Network Transmission Right Protection Ordinance,Computer Software Protection Ordinance,and Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Infringing on the Right of Information Network Dissemination.Some Higher People's Courts have also issued some guidance.However,the inconsistency of legal terminology and unclear logical relationship among various legal provisions has led to confusion in judicial practice.Laws and regulations stipulate various principles of imputation,and how should all kinds of illegal acts with complex technical factors be applied? The inconsistent standard of tort fault determination also causes confusion and difficulty in judging.The perplexity of practice needs theoretical research and sorting out,judging whether network dissemination acts constitute infringement,and returning from “server standard” and “user perception criteria” to “legal standard”,that is,to the judgment and identification of the elements of infringement.Therefore,combing and researching the constitutive requirements of the infringement of information network dissemination rights with the traditional civil law infringement theory has its practical significance.With the emergence of new problems about network technology,can the constitutive requirements of the infringement theory play its due role in the complex and changeable Internet environment? Is there any particularity in the constitutive requirements of infringement of information network dissemination right? Following the reality of judicial practice,how to adjust the legislative guiding ideology of information network dissemination right and how to establish its specific constituent requirements system? These problems are worthy of further discussion.This paper will be divided into three parts to analyze these problems.Chapter One is an overview of the right of information network dissemination.This paper explores the boundary between the object and content of the information network dissemination right from the perspective of the legislative process and purpose,and puts forward that the infringement of information network dissemination right should include five elements: subject,act,damage fact,causality and fault.Chapter Two illustrates the problems in legislation and application of law in China,focusing on the problems that affect the elements of conduct and fault in our current legislation and practice,and comparing the legislation norms and practices in the United States on related issues for reference.Chapter Three is about the establishment on the constitutive requirements of infringement of information network dissemination right.Based on the mechanism of interest balance,this chapter puts forward the value orientation of legislation on the right of information network dissemination,that is,the interests of the obligee take precedence,and under the overall value orientation of the obligee's interest priority,this paper makes an analysis and suggestion on the concrete construction of the constitutive requirements of infringement of information network dissemination right.For example,in the analysis of the elements of conduct,through case analysis method,on the basis of in-depth analysis of some specific cases,this paper attempts to classify and induce the substantive and special acts of providing.In the concluding part,this paper gives some suggestions on the legislative and practical level in view of the discussed problems.