On The Infringement Regulations Of The Platform Operator’s Improper Exercise Of Management Power

The fourth industrial revolution is advancing,the real and the virtual mirror and merge with each other,and the social structure has undergone revolutionary changes.The platform has become an important space for human survival,transcending the single category of the market,and has a panoramic impact on politics,economy,and culture.Platforms are increasingly organized,forming a relatively independent and public social system.The value of the platform is jointly created by the platform participants,and the platform is not the "private place" of the platform operator.Within the platform,the platform’s legal management responsibilities,technical capabilities,economic strength,and network stickiness have contributed to the creation of the platform’s private power,thus forming a new social structure of "state-platform-society".The source of the legitimacy of the platform’s private power is not the contract,but the legal empowerment,the promotion of social interests and the enhancement of network governance efficiency.The power of platform operators over users can be positioned as management power,which is the representation of platform operators’ management responsibilities in the new social structure.The management right is different from the formation right in private law and the internal power of the company organization.This indicates that there must be a tension between the public attributes of the platform and the "self-interested preference" of behavior,which is the fundamental reason for the distortion of platform operators’ behavior.While technology is shaping society,it is urgent to use norms to tame platform power and ensure that platform management rights act for good.In the practice,the specific types of improper exercise of management rights of platform operators are as follows: intentional or negligent failure to perform management responsibilities,an improper association of keywords,algorithmic discrimination,algorithmic "hegemony",improper information crawling and targeted pushing,preferential treatment of self-operated business,and imbalance of rights and responsibilities in the setting of platform rules.The above-mentioned specific types can be summarized as“inaction of remising in exercising management power” and “misfeasance of abusing of management power”.Due to the existence of the management relationship between "platform and user",the connotation of the duty of safety and security and the duty of management are consistent,and the negligence of exercising the management right is essentially the failure to fulfill the duty of management.However,the abuse of management power is an infringement,and the core is to clarify the boundary of its behavior based on the characteristics of the management right.There are three paths for the regulation of platform operators’ improper exercise of management rights: Contract Law,Anti-Monopoly Law,and Tort Liability Law.In the context of "dominance" created by the right of management,the "basis of equality" on which contract law was founded no longer exists.With the codification of rules and the complexity of the object of power,it is also difficult to apply the “standard form contract theory”.The "private" nature of the management right of the platform indicates that it is necessary to respect economic logic and platform self-discipline.The administrative regulation in the antitrust law mainly plays a role in the external behavior of platform operators,while the value of modesty and caution should be upheld for the internal activities of the platform.Therefore,it is necessary to give full play to the behavior correction function of the Tort Liability Law and create a fair environment in which Habermas’ s negotiation theory is used to correct the improper exercise of the platform operator’s management power.The improper exercise of management powers by platform operators is rectified through judicial assurance and strengthening the ability of platform users to participate in platform governance.As far as the infringement of slack in exercising management rights is concerned,management responsibilities mainly include the security obligations of platform operators and corporate organizational obligations.Under the oligopolistic platform economy situation,due to the consideration of platform goodwill,administrative penalties,and responsibility,and based on the virtual nature of the platform and its isolation from physical space,platform operators deliberately cooperate with third parties to infringe and It is very rare for a third party to infringe through negligence.The infringement of "intentional third party + platform negligence" has become the main type of platform omission infringement.Article 1197 of the Civil Code,as the basis for the right to claim,has been impacted by platform organization and system localization in my country,and there are hidden loopholes and open loopholes.For hidden loopholes,it is necessary to use the teleological narrowing method to fill in,and the judgment basis of "knowing" is limited to the facts that the platform operators have grasped,without considering the preset cognitive obligations.When the platform operator knows and has the ability to stop the intentional infringement of the third party,it constitutes joint infringement.When the platform operator violates the obligation of action due to negligence,the two are divided into different levels in terms of attribution,and the type of infringement is third-party infringement.For open loopholes,the loopholes can be filled by analogy.By analogy as a whole,platform operators should bear unreal joint and several liability for breach of corporate organizational obligations,and the main area of responsibility is strict liability;by analogy with Article 1198,paragraph 2 of the Civil Code,platform operators should bear supplementary liability for breach of security obligations,the main area of responsibility is fault liability.Due to the abuse of management power by platform operators,the virtual property,money,privacy rights,personal information rights,personal dignity,freedom of personality,and economic development rights of network users will be affected.Many of these rights and interests belong to the category of basic rights and social ethics.Based on the national governance function and comprehensive protection of rights and interests of the civil law,and under the premise of respecting the differentiation of social functions and the self-derived operation of each subsystem,after testing and weighing the interests of the formal elements of civil law and general personality rights,they can be included in the protection scope of tort liability law.The exercise of management rights of platform operators should be subject to procedural requirements,platform neutrality principles,and proportionality principles.Platform operators should exercise private power neutrally,maintain competitive neutrality within the platform,and ensure neutrality of the purpose of management behavior and neutrality of data services.Platform operators are market entities and cannot strip their self-interest attributes.In order to avoid the negative impact of strict neutrality on the market,small and medium-sized platforms can be exempted from neutrality obligations to a limited extent,and to achieve platform ecological optimization and diversified market operations can break through the principle of platform neutrality.In addition,when exercising management rights,platform operators should follow the principle of proportionality,combine the economic characteristics of the platform and the attributes of platform management rights,and examine the principles of appropriateness,necessity,and proportionate in a narrow sense.In terms of liability,based on the uncertainty of innovation,the publicity and freeness of platform services,and the scale of the platform,and drawing on the theory of pure economic loss,the “civil sanction” function of tort liability should be brought into play.According to the behavior characteristics,choose the appropriate responsibility method to correct the management behavior of the platform operators.