Research On ’Corresponding Responsibility’ Of E-commerce Platform Violating Security Obligations

As a special law in the field of e-commerce,"Electronic commerce Law of The People’s Republic of China" was promulgated in 2018 for the first time,which has resolved the theoretical disputes caused by the legislative deficiency to a certain extent.The article 38,paragraph 2 clarifies that the e-commerce platforms have security obligations in legal form.However,there are disagreements in the application of this clause in judicial practice,resulting in the phenomenon of different judgments in similar cases.Through analysis and induction of the relevant cases,there are practical problems mainly including the following two aspects.Firstly,there are differences in the reasonable limits of the platform operators’ security obligation.Secondly,there are differences in the cognizance of "corresponding liability" in Article 38,paragraph 2 of "Electronic Commerce Law".It is due to the fact that the rules about platform operators’ security obligations is too general.It is not clear about the connotation of platform operators’ security obligations and the responsibility for platform operators violating security obligations.As far as the reasonable limits of the security obligations of platform operators are concerned,the content of the platform operators’ security obligations includes four obligations: first,the obligation of qualification on operators;second,the obligation of public notification;third,the obligation of improving the channels for complaints and evaluation systems;fourth,the obligation of timely rescue.The specific contents of the obligations come from the legal provisions in the "Electronic Commerce Law","Measures for the Supervision and Administration of Online Transactions" and another legal norms.Secondly,since normative standards are legal standards that platform operators must comply with in fulfilling the security obligations,the comprehensive judgments on platform operators’ failure to fulfill their security obligations should be based on normative standards,convention standards,industry standards,and reasonable administrator standards.Since platform operators verify the relevant qualifications of the operators on the platform,it essentially belongs to a primary screening and beforehand prevention of "abstract risk".Therefore the reasonable limit on the obligation of qualification should be a formal standard.As for the cognizance of "corresponding liability" in Article 38,paragraph 2 of the "Electronic Commerce Law",under the current legal system and the perspective of interpretive theory,the "corresponding liability" of e-commerce platform operators violating security obligations is mainly applied as supplementary liability,which is based on the regulatory purpose and internal logic of the first paragraph and second paragraph in Article 38.The specific scope of responsibility of the platforms should be comprehensively considered in the individual case and it should be based on the platforms’ degree of fault,and other factors.Finally,as Article 1198,paragraph 2 of "Civil Code" legislatively affirms the right of recourse of the security obligations,the platform operators should have the right of recourse after assuming the corresponding supplementary liability.