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

On August 31,2018,the Standing Committee of the National People's Congress passed the " Electronic Commerce Law ".Article 38(2)of the Law establishes security obligations for the electronic commerce platform operators in the field of goods or services related to the life and health of consumers,and clearly stipulates that those who violate such obligations shall bear corresponding responsibilities.This is the first time that the security obligation has been extended to the field of e-commerce,but the ambiguity of the liability clause also leaves a blank for the application of law.Therefore,it is important to investigate the tort liability of e-commerce platform operators for violating security obligations.Security obligation of tort law in our country comes from German Civil Law,as so called "Verkehrssicherungspfliht".through the analysis of comparative law,the scope of application or the doctrine of liability fixation or the legalization of the two concepts are all different.But the theory of "Verkehrssicherungspfliht" can provide the legal basis which security obligations can be used in the field of e-commerce.In other words,e-commerce platform operators assume security obligations based on risk management theory,income and risk integrity,social cost savings and trust protection principles in private law.According to the analysis of law hermeneutics,this obligation should be connected with article 37 of Tort Liability Law,but not compatible with article 36 of Tort Liability Law.This obligation is a private law obligation that may result in a non-infringement obligation.The "Electronic Commerce Law" uses the expression of e-commerce platform operator for the first time,and defines the concept of this subject,which plays a normative role in other chaotic characterizations in theoretical research and normative documents.The principle of fault liability should be applied to the determination of the infringement of security obligation by the operator of e-commerce platform,but the objective standard should be applied to the fault.Operators of e-commerce platforms should assume the obligation of warning,review and processing,providing safety technical support and assistance to consumers.Violation of this obligation may harm consumers' lives and health,and there is a causal relationship between non-feasance and the fact of damage,which are sufficient to constitute infringement.E-commerce platform operators should bear their own responsibilities in individual infringement and there is no space for alternative liability.In the case of third party infringement,the operator of e-commerce platform should bear the corresponding supplementary liability,which is related to the cause of the damage and the degree of negligence.After being responsible for compensation,the party may seek compensation from the third party which directly infringing the right.In addition,operators of e-commerce platforms can not only diversify operational risks,but also maximize the protection of consumers' legitimate rights and interests by implementing measures such as liability insurance and risk fund.