Research On The Security Obligation Of E-commerce Platform Operators

It is a consensus among academics and judicial practitioners that e-commerce platform operators need to assume security obligations to consumers.The E-Commerce Law of the People’s Republic of China(hereinafter referred to as "E-Commerce Law")has come into force since 2019,and Article 38 of the E-Commerce Law formally expands the scope of application of the security obligations to cyberspace.With the establishment of the system,judicial practice has applied Article 38 of the E-Commerce Law in large numbers and accumulated certain adjudication experience,but due to the deficiencies of the system,there are differences in the theoretical understanding of the safety and security obligations of e-commerce platform operators,and many problems have been highlighted in practice.For example,in the network when the security obligations of infringement,judicial practice for the "Electronic Commerce Law" Article 38 and other security obligations between the application of the relationship between the differences in understanding,for e-commerce platform operators to assume the specific content of the security obligations of the identification is not uniform.There are many ways to operate in the e-commerce industry,and the e-commerce platform operators play different roles when they participate in transactions,and judicial practice does not take into account the differences in the legal subjects when determining that the e-commerce platform operators violate the safety and security obligations.Some scholars mainly consider the public nature of the e-commerce platform when defining the security obligations of the e-commerce platform,without further exploring the source of its security obligations,and the judicial authority also exists to consider the vulnerable position of consumers in the transaction and the scope of the security obligations of the undue expansion of the situation.In this paper,we analyze and categorize the actual cases of safety and security obligations of e-commerce platform operators,review the problems that still exist in current judicial practice and reflect on the reasons for the problems,and organize the relevant normative basis to clarify the connections,and analyze the standards and scope of safety and security obligations in cyberspace,and make suggestions for improving the safety and security obligations of e-commerce platform operators through comparative research and drawing on overseas experience.Through comparative research,we propose suggestions for improving the security obligations of e-commerce platform operators.In addition to the introduction and conclusion,this paper is divided into four chapters as follows.Chapter 1,the judicial status of the security obligations of e-commerce platform operators and a review of the problems.Firstly,this part collects and sorts out the cases of security obligations of e-commerce platform operators,summarizes the overview of the sample cases,and analyzes the divergent points in judicial practice through the overall situation of the sample cases: Firstly,the specific content of the security obligations of e-commerce platform operators in judicial decisions is not uniform.Second,the definition of the scope of the security obligations of the operator of the e-commerce platform is divided.Third,the judicial practice that the operator of the e-commerce platform has done its duty of safety and security for different reasons.Fourth,judicial practice for the application of relevant laws and regulations did not form a unified idea.Second,the judicial status quo in the points of disagreement,reflecting the problems in judicial practice of the security obligations of the operator of the e-commerce platform: one,the identification of the operator of the e-commerce platform to undertake security obligations when the application of rules confusion.Second,the status of different legal subjects of e-commerce platform operators is not clearly distinguished.Third,the standard of the security obligations of the operator of the e-commerce platform has not been unified.Fourth,the scope of the security obligations of the operator of the e-commerce platform was improperly expanded.Chapter 2,the normative basis of the safety and security obligations of e-commerce platform operators.First of all,this part sorts out the relationship between different norms of the safety and security obligations of e-commerce platform operators.platform operator’s safety protection obligations of the regulatory system.Secondly,to analyze the normative structure of the first and second paragraphs of Article 38 of the E-commerce Law,the first paragraph to the second paragraph of Article 38 of the E-commerce Law has an increasing attribution;and the "safety guarantee obligation" stipulated in the second paragraph should include the "audit obligation" stipulated in the first paragraph.".Finally,discussing the rules of application of the safety guarantee obligations of e-commerce platform operators,Article 38 of the E-commerce Law shall be recognized as a special norm of Article 1198 of the Civil Code,and the rules of application of general and special provisions shall be followed in its application.Chapter 3,the standards and scope of the security obligations of the operator of the e-commerce platform.First,clarify the criteria of the safety and security obligations of the e-commerce platform operator: First,the content of the safety and security obligations of the e-commerce platform operator shall be flexibly understood.Second,the safety and security obligations of the e-commerce platform operator standard should be distinguished according to its different legal status.Third,the standard of the safety and security obligations of e-commerce platform operators should be higher than its duty of care.Fourth,through the summary of the previous subsections,the safety and security obligations of e-commerce platform operators belong to the "best efforts obligation" to prove.Secondly,the scope of the safety and security obligations of e-commerce platform operators is delineated,starting from the theoretical basis of the scope of the safety and security obligations of e-commerce platform operators,the scope of the safety and security obligations of e-commerce platform operators is delineated by the public nature of the platform and the basic types of obligations,and then the impact of algorithmic technology on the scope of the safety and security obligations of e-commerce platform operators is elaborated.In the fourth chapter,based on the summary of the first three chapters,combining empirical research and theoretical analysis,and drawing on the experience of overseas countries and regions to enlighten China,the paper puts forward suggestions to improve the security obligations of e-commerce platform operators from the perspective of improving the normative basis of the security obligations of e-commerce platform operators and the reasonable limitation of the scope of security obligations of e-commerce platform operators.The possible innovation of this paper is that this paper analyzes the normative basis as well as the standard and scope of the safety guarantee obligation of e-commerce platform operators from the empirical perspective through the combing of recent judicial practice cases,which is more relevant compared with the methods and contents of previous studies.The impact of algorithmic technology on the scope of security obligations proposed in this paper is innovative in terms of viewpoints.The shortcomings of this paper are: the proposals for improving the security obligations of e-commerce platform operators are mainly based on previous case studies and theoretical analysis,which are subject to the lack of practical experience,and whether they are operational and practical value still need to be tested in practice.The reference to overseas experience also needs to be further tested through consideration and practice based on China’s national conditions.