Research On The Compensation For Damages Of Operators Abusing The “Notice-necessary Measures” In E-commerce Platform

The "notice necessary measures" rule is derived from the "notice deletion" rule.In the Digital Millennium Copyright Act of the United States,the "safe harbor rule" including the "notice delete" rule has been constructed.China has transplanted and reconstructed the rule,not only extending its scope of application to all civil rights and interests,but also developing the "notice delete" rule into the "notice necessary measures" rule.The abuse of "notice necessary measures" rules by operators in e-commerce platform disturbs the order of competition and causes the loss of economic interests of legitimate operators.In 2018,China issued the e-commerce law,which clearly stipulated the liability for damages of malicious error notice in Article 42.This paper intends to use hermeneutic method,empirical analysis method and historical investigation method to conduct a comprehensive study on the judicial application of this clause.This paper consists of four parts: introduction,preface,text and conclusion.The main body is divided into the following five chapters: the first chapter is an overview of the abuse of the "notice necessary measures" rule behavior,clear its subjective and objective elements and behavior types,analysis of the abuse of the "notice-necessary measures" behavior of the legal attributes,and the abuse of the "notice necessary measures" behavior of the particularity of liability for damages were analyzed;the second chapter gives a general overview of the damages for the abuse of the "notice necessary measures" rule,including the concept of the abuse of the "notice necessary measures" rule,the principle of liability fixation,legislation and judicial practice;the third chapter makes clear the constitutive requirements of the liability for damages caused by the abuse of the "notice necessary measures" rule;the fourth chapter discusses the damages caused by the abuse of the "notice necessary measures" rule and its calculation,and points out that China should draw lessons from other countries or regions’ legislation and judicial practice;the fifth chapter puts forward solutions for the problems raised in the article.On the calculation of compensation,we should perfect the calculation method of damage amount stipulated in the anti unfair competition law,clarify the content of reasonable expenses,and increase the calculation method of reasonable multiple of transaction cost,and the application of discretionary compensation should be strengthened.At the same time,the punitive compensation mechanism should be improved to curb malicious tort.