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Study On The Interpretation Of Article 38,Paragraph 2 Of The E-Commerce Law

Posted on:2020-10-19Degree:MasterType:Thesis
Country:ChinaCandidate:Y J SuFull Text:PDF
GTID:2506306131462384Subject:Law
Abstract/Summary:PDF Full Text Request
On January 1,2019,E-Commerce Law of the People’s Republic of China(hereinafter referred to as "E-commerce Law")began to be implemented.Article 38 stipulates the responsibility of the e-commerce platform.The second paragraph stipulates that:If,in respect of commodities or services relative to the life and health of consumers,an e-commerce platform business causes damage to a consumer by its failure to perform the obligation of reviewing the qualifications of an in-platform business,or the obligation of guaranteeing the safety of consumers,the e-commerce platform business shall be correspondingly liable in accordance with the law.This clause has been controversial in previous deliberations.From the "joint liability" of the third draft to the "corresponding supplementary responsibility" of the fourth draft to the "corresponding responsibility" of the final draft,the method of avoidance was adopted in the end.If the content of the legal provisions cannot be agreed in the legislative process,differences will arise in the judicial practice,which will not only cause confusion in the application of the law,but also not conducive to protecting the legitimate rights and interests of e-commerce platforms and consumers.In order to better apply the law,it is necessary to explain the relevant concepts involved in the law.The scope of the e-commerce platform and operator within the platform.As long as the online platform can provide services for the parties to conduct transactions independently,it belongs to the "e-commerce platform" stipulated in Article 38,paragraph 2 of the Electronic Commerce Law.Operators engaged in profit-oriented continuous business activities within the e-commerce platform are all "operators within the platform" as stipulated in this Law.The obligation of the e-commerce platform operator.Its obligations are mainly based on the principle that the balance between risk and benefit,the principle of reliance interest protection of consumer and the principle of save total social cost.The principle of obligation distribution is mainly to ensure the balance of interests between operators and consumers.E-commerce platform operators should classify the goods and services within the platform and clarify the categories of "goods or services related to consumers’ life and health".In general,its obligations mainly include qualification review obligations and security guarantee obligations.The same obligation has different focuses and expressions at different stages of the transaction and different types of e-commerce platforms.The responsibility of the operators of e-commerce platforms.The "Joint responsibility" stipulated in the third review draft and the "supplementary liability"stipulated in the fourth review draft have reasonable points,but there are also some problems.The "corresponding responsibility" of the final draft is also vague and unfavorable for the operation of judicial practice.According to the business model of e-commerce platform,it can be divided into cooperative type,neutral type and self-operated type.The characteristics of different types of platforms determine that they should bear different responsibilities.
Keywords/Search Tags:E-Commerce Law, E-commerce platform, Operator within the platform, Qualification review obligation, Security obligation
PDF Full Text Request
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