The Demarcation Of Common Responsibility Between The Electronic E-commerce Platforms And The Proprietors Within The Platforms

With the popularity of the Internet,e-commerce has rapidly penetrated into the areas of commodity production,sales and other links.Consumers are increasingly relying on online shopping,and proprietors have settled into various e-commerce trading platforms.We should not only see the convenience and benefits brought by e-commerce transactions,but also notice the problems of network transactions.According to a survey of e-commerce transaction platforms by the national bureau of statistics,e-commerce transactions in the first quarter of 2019 totaled ￥7.69 trillion,up 4.7 percent year-on-year.The value of e-commerce transactions in goods and services was 7.50 trillion yuan,up 5.7%.The huge transaction volume brings great pressure to the e-commerce platform as well.Although the new Electronic Commerce Law has made corresponding changes compared with the Tort Liability law in terms of network infringement,some provisions still have problems.Electric business platform proprietors and platform proprietors in the duty time due to some concepts,such as the "necessary steps","review obligation",and "safety guarantee obligation" is applied to the field of electronic commerce as the connotation and denotation of the concept of produce doubt,at the same time,practice is also difficult to confirm the specific construction form of "responsibility".This paper attempts to solve the problem of responsibility demarcation between the proprietors of the e-commerce platforms and the proprietors within the platforms from the perspective of the problems existing in the application of the current law in practice.The first part of this paper introduces the basic types of subjects and their legal relationships in the legal relationship of e-commerce transactions,and briefly categorizes the rights and obligations of each subject in the legal relationship of e-commerce transactions.Taking this as an opportunity to sort out the content of the legal relationship of e-commerce transactions,paving the way for the analysis of the common responsibility of e-commerce transaction subjects.The second part of this paper analyzes three civil liability related to the electric business platform,which is regulated in the E-commerce Law.If the e-commerce platform fails to take necessary measures,if the e-commerce platform fails to fulfill the audit obligation or the security obligation,and if the operator of the platforminfringes others’ intellectual property rights through the e-commerce platform,how will the e-commerce platform and the platform operator who commits the infringement act bear joint responsibilities? This paper will try to trace the source of the above three kinds of civil liability provisions and other legal provisions related to the provisions.The third part of this paper analyzes the existing problems of the joint liability demarcation between the e-commerce platform and the operators within the platform: how to determine whether the e-commerce platform is in the state of "knowing or should know" if the e-commerce platform knows or should know that the infringement requires necessary measures;The e-commerce law requires e-commerce platforms to fulfill the audit and security obligations,but it does not specify the standards for e-commerce platforms to fulfill the obligations.There is an expression of corresponding liability in the law of electronic commerce.At present,judicial practice and academia have not reached a consensus on the specific form of corresponding liability.Operators on the platform infringe others’ intellectual property rights through the e-commerce platform,but currently there is no standard for the notification of qualification.The fourth part of this paper responds to the previous analysis: firstly,this paper believes that it is necessary to clarify the meaning of "know and should know",and e-commerce platforms should be deemed to "know" the existence of infringement after receiving the notice of infringement.But "ought to know" is a kind of legal inference,which requires judges to judge according to specific facts in specific cases.It is also necessary to clarify the boundary of "necessary measures".According to the degree of infringement on e-commerce consumers,e-commerce platform operators can divide the necessary measures into different levels.Secondly,audit obligations of e-commerce platforms should depend on natures of providing commodities or services.As a new type of security obligatory,e-commerce platforms enjoy higher control over the virtual trading space,so they need to undertake higher standards of security obligations.Thirdly,according to the different nature of commodities or services,it is necessary to judge whether special laws should be invoked to confirm the form of liability.If it does not belong to the field of special laws,joint infringement should be considered and joint liability should be assumed;fourthly,qualified notification shall satisfy the formal and substantive requirements;When determining the "timely" time period,it isnecessary to consider whether the notification of eligibility has a deletion period and whether the e-commerce platform has made a commitment to the deletion period in advance,and it can be determined by combining relevant provisions in the model law of tort law of east Asia(draft).