Study On Internet Infringement Liability In Interpretative Theory

Tort Liability Act was considered and adopted on December26th2009at the12th meeting of the11th session of NPC Standing Committee. Important as one of the country’s basic civil law, Article36of the Tort Liability Act makes a special provision on internet infringement. However, after the enactment of the Tort Liability Act, the academia on how to explain and implement the Article36devise from on to another.This paper argues that the reason that why the provisions of the article36of the Tort Liability Act is difficult to reach a consensus lies in that academic scholars explain article36of Tort Liability Act in the different theoretical preferences and with different theoretical default. Based on this, this paper suggests that we must interpret the article36strictly from the perspective of interpretation theory, based on the fundamental principles and basic rules of legal interpretation, strictly in accordance with the relevant provisions of the existing legislative provisions of article36of the Tort Liability Act. Only in this may can we avoid the academic situation existing now and help scholars to reach a consensus on the legislative provisions of the article36of the Tort Liability Act of internet infringement. Based on the above considerations, this paper proceed from the perspective of interpretation theory, and a detailed explanation and description of the three legislative provision on the internet infringement in article36of Tort Liability Act.In the first chapter, this paper reviews in detail on the internet infringement meaning as well as its position in the Tort Liability Act. This is the basic issue to reach a consensus on the internet infringement. Among the internet-related terms, either from the terminology habits, the connotation and denotation of the terms, the internet infringement term is the ideal term. The first paragraph of Article36of Tort Liability Act made a more broadly defined of the infringement on the internet. The two paragraphs after made a restrictive definition. Interpretation methods from the legal system, Tort Liability Act approved internet infringement is a separate type of tort liability.In the second chapter, this paper concentrates on the principle of internet infringement and makes a detailed interpretation of the first paragraph of article36of the Tort Liability Act. Based on different interpretations theories, the interpretations of the first paragraph of article36of the Tort Liability Act will come to different conclusions. According to the method explained in context, the principle of internet infringement liability is non-fault liability, while according to the method explained in purpose, the principle of internet infringement liability is fault liability. So adopting a different interpretation method, this paragraph will come to different conclusions. The author believes that, we should take the interpretation of purpose method. Accordingly, the first paragraph of article36of the Tort Liability Act takes fault liability principle of internet infringement.In the third chapter, this paper takes notice and takedown regime as the core, and makes a detailed interpretation of paragraph two of article36of the Tort Liability Act. There are two main differences about notice and takedown regime in different legislations in our country. First, can notice and takedown regime be applied in all rights and interests which are infringed or not. Second, whether the counter-notification regime applies to the case of infringement of rights other than copyright infringement. About the first question, either from the perspective of the theoretical basis, or from the perspective of comparative law experience, notice and takedown regime is widely applied to the field of all kinds of civil rights infringement would not be appropriate. Therefore, the provisions of second paragraph of article36of Tort Liability Act should be restrictive interpreted. About the second question, from the point of view of the literal interpretation of Article36of Tort Liability Act, paragraph two really does not provides counter-notification regime. However, from the point of view of the system of interpretation, counter-notification regime should be as the supplementary to apply them.In the fourth chapter, this paper concentrates on how to identify the internet service provider’s subjective element, and makes a detailed interpretation of the third paragraph of article36. From the point of view of historical interpretation, know should not be interpreted as knowingly, nor should it be interpreted as should know, but should be explained in the third paragraph of Article36of the Tort Liability Act as have reason to know. Have reason to know means that the internet service provider is not required to bear some prior review obligations, but only according to the duty of care of a good administrator, and presented objective facts of the situation to make a good faith judgment. Objective phenomenon showed enough to make a rational person to identify the presence of infringing content, and the internet service provider shall promptly this to take measures. whether the internet service providers bear a general review of obligation is the core difference between should know and have reason to know.Finally, this paper explains the relationship between the second paragraph and the third paragraph of article36of the Tort Liability Act. Derived from the way of logical inference, paragraph two and three are neither the containment relationship that one partly includes another, nor the containment relationship that one belongs to the other, but the parallel relationship that one parallel to another.