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Research On Tort Liability Of E-commerce Platform Operators

Posted on:2024-08-14Degree:MasterType:Thesis
Country:ChinaCandidate:X Z HuFull Text:PDF
GTID:2556307184495054Subject:Law
Abstract/Summary:PDF Full Text Request
With the popularity of mobile payment,the e-commerce industry has developed rapidly.China promulgated the Electronic Commerce Law in 2019,which ended the brutal development of e-commerce platforms.The Electronic Commerce Law stipulates that e-commerce platform operators(hereinafter referred to as e-commerce platform operators)should bear the responsibility to protect the personal and property safety of consumers.However,due to the characteristics of the law itself,there are some legislative deficiencies in this law,especially the expression of "corresponding responsibility" in Article 38 of the Electronic Commerce Law,which has a long history of controversy in legislation.Moreover,judicial practice shows that due to the vague legal concept,the law has problems in judicial practice,such as the specific identification of the platform operator’s tort liability,the choice of liability form,and so on,which leads to the confusion of the legal application in the trial process,and a large number of different judgments in the same case.Therefore,the legal regulation of the e-commerce platform operator’s tort liability is a practical problem of research value.Based on the above problems,this paper is divided into three parts for discussion.The first part mainly discusses that under the background of the promulgation of the Electronic Commerce Law,the electronic commerce industry has special legal regulations,but there are practical difficulties in the application of paragraph 2 of Article 38 of the Electronic Commerce Law.This difficulty leads to the object to be discussed in this paper.As far as the current judicial practice is concerned,the theoretical interpretation of the "corresponding responsibility" mentioned in paragraph 2 of this article is not consistent.The judicial practice is chaotic,mostly vague,and even often passed by,and finally does not show its due practical value.The author lists and analyzes the relevant cases of "corresponding responsibility" in the current judicial practice,and searches and integrates the relevant cases with the keywords of "Article 38 of the Electronic Commerce Law" and "Article 38,paragraph2 of the Electronic Commerce Law".From the perspective of the identification of the responsibility of the platform for failing to fulfill its security obligations,from the perspective of the cases with different judicial views,the judicial practice has less use of the second paragraph of Article 38 of the Electronic Commerce Law,and in a few applicable cases,the specific form of the responsibility is often not consistent in different regions and different levels of trial.Therefore,the author combines the disputes in the legislative process and the judicial practice,thinking that if the "corresponding responsibility" cannot be specified to a certain form,it may lead to different judgments in the same case,which is not conducive to the stability of the law.The second part mainly analyzes the concept and characteristics of today’s e-commerce platform operators based on Article 9 of the Electronic Commerce Law;Secondly,it discusses the meaning of operators and consumers within the platform,and analyzes the legal relationship between the three parties.Due to their non pure neutrality and dominant position,e-commerce platform operators not only have the right to make profits,but also have the obligation to maintain normal online trading order.Next,it interprets the security obligations undertaken by e-commerce platform operators under Article 38,Paragraph 2,of the Electronic Commerce Law,expounds the rationality and particularity of e-commerce platform undertaking security obligations,and further discusses that the value of e-commerce platform operators lies in the responsibility structure.The third part first demonstrates that the value of security obligations lies in the structure of liability,and analyzes the general elements of tort liability,and concludes that the failure of e-commerce platforms to perform security obligations constitutes tort liability.The third part first focuses on the analysis of the specific forms of "corresponding liability".Based on the same civil law system,"corresponding liability" should be civil liability.Then,based on the analysis of the general elements of tort liability,it is concluded that the failure of e-commerce platforms to fulfill their security obligations constitutes tort liability.Secondly,based on the aforementioned theoretical research and relevant normative provisions,we will discuss the tort liability that e-commerce platform operators should bear under the premise of different faults of operators within the platform.If the infringement behavior of the operators on the platform against consumers is intentional,the e-commerce platform operators who fail to fulfill their safety and security obligations shall bear the "corresponding supplementary liability" required by Article 1198,paragraph 2,of the Civil Code.At the same time,the e-commerce platform operators who bear the "supplementary liability" have the right of recourse,that is,the e-commerce platform operators who bear the responsibility will not violate their "own responsibility",and it is beneficial to protect the vulnerable consumers among the three parties,It can also prevent the true infringer from escaping responsibility;If both the subjective fault of the e-commerce platform operator and the operator within the platform are faults,Article 1172 of the Civil Code should be applied by analogy,that is,"corresponding liability" is a shared responsibility,and the e-commerce platform operator has no right of recourse.
Keywords/Search Tags:Platform Operator of E-Commerce, Security Obligations, supplementary Liability, Several liability, Right of recourse
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