On The Obligation Of Safeguarding The E‐commerce Platform Operators

China’s Internet industry is developing rapidly,online transactions are rising rapidly,and various e-commerce platforms are emerging like mushrooms.Online shopping has brought great convenience to people’s lives,and you can buy your favorite products without leaving home.At the same time,the emerging trading methods have also brought challenges to social life and the original legal system,triggering a series of consumer infringement disputes.While enjoying the convenience brought by online exchanges,consumers’ own legal rights are also vulnerable to Infringement,the operator of the e-commerce platform,as the builder and maintainer of the website,is responsible for the safety of consumers.In order to protect the legitimate rights and interests of consumers and maintain the good order of online trading activities,on January 1,2019,China promulgated the "E-commerce Law".Article 38 of the "E-commerce Law" stipulates that operators of e-commerce platforms should bear the responsibility of breaching security guarantees." "Responsible Responsibility",this expression is generally vague,and may cause ambiguity in understanding and difficulties in application.It is necessary to clarify the specific content of Article 38 of the "E-commerce Law" and clarify that operators of e-commerce platforms bear responsibility for violations of security guarantee obligations The specific form of responsibility is expected to provide a solution for the correct application of Article 38 of the E-commerce Law and the improvement of the e-commerce platform operator’s security guarantee obligation system.In addition to the introduction and conclusion,this article mainly includes the following five parts:The first part is the development and problems of the security obligations of e-commerce platform operators.This section elaborates that Article 38 of the E-Commerce Law stipulates that operators of e-commerce platforms should bear “corresponding responsibilities” in violation of their security assurance obligations.Due to the diversified development of cyber infringement,the separation of public power supervision and platform supervision and the restrictions under the existing technical conditions have led to the absence of network safety supervision.The second part is the legal basis of the security obligations of the operators of e-commerce platforms.This part expounds the legal basis of the e-commerce platform operator’s security guarantee obligations from four theories: control result damage theory,income risk consistency theory,social cost control theory and civil law trust protection theory.The third part is the composition of the security obligations of the operators of e-commerce platforms.This part expounds the subject,content and nature of the security guarantee obligations of the e-commerce platform operators.With regard to the subject of the security guarantee obligations of the e-commerce platform operators,the subject of their rights is the e-commerce platform operator,the subject of the obligations is the consumer,The premise of the infringement of the operator’s violation of the security guarantee obligation is that both parties are engaged in e-commerce activities;the content of the security assurance obligation of the e-commerce platform operator includes hardware facility security,operating system security,information dissemination security,and information content security;E-commerce platform operators’ security guarantee obligations the nature of this is a statutory obligation.Compared with Article 38 of the E-Commerce Law and Article 37 of the Tort Law,it is found that the operators of e-commerce platforms are more responsible than managers of public places and organizers of mass activities.Degree of security guarantee obligations.The fourth part is the responsibility of the e-commerce platform operator for breach of security obligations.This section explains that joint e-commerce platform operators should not be jointly and severally liable for breaching their security guarantee obligations,and supplementary liability should be applied.The scope of application of Article 38,paragraph 2 of the E-commerce Law should be narrowed to the e-commerce platform operator ’s faulty breach of security The situation where the obligation is combined with the intentional infringement of the operators on the platform,and the operator of the e-commerce platform has the right to recover the operators on the platform after assuming supplementary responsibilities.A detailed interpretation of the content of Article 38 of the E-Commerce Law.The applicable condition of Article 38,paragraph 1 is that there is a joint infringement between the operator of the e-commerce platform and the operator within the platform.The operator of the e-commerce platform needs to know or should know the platform The subjective psychological state of infringements by internal operators includes intention and negligence;the applicable condition of Article 38,paragraph 2 is that the negligence of the e-commerce platform operator violates the security guaranteeobligations and no effective preventive measures have been taken.There is no need to know the infringements of the operators on the platform,and their subjective mental state includes only negligence.The fifth part is the construction of supporting system for security obligations of e-commerce platform operators.This part elaborates that to enable e-commerce platform operators to better fulfill their security obligations,they should first clarify the meaning of "corresponding responsibility" in judicial interpretations,and at the same time establish a corresponding supporting system for security assurance obligations to regulate public power supervision and platform supervision.Combine and establish an industry self-discipline system and strengthen consumer supervision mechanisms.