Research On Civil Liability Of E-commerce Platform Operators For Torts

In recent years,with the development and increasing popularity of the Internet,e-commerce has developed from the original "new thing" to a transaction mode with advanced information technology as the medium for the whole society,and has penetrated into every aspect of social and economic life.However,under the appearance of this flourishing prosperity,all kinds of violations of the legitimate rights and interests of consumers occur frequently,restricting the development of e-commerce.To protect the legitimate rights and interests of the parties subject e-commerce,regulating the conduct of e-commerce in China in 2019,effective as of the e-commerce law(hereinafter referred to as the "electric commercial law")has been clear about the e-commerce platform operators,the concept of legal status is different from the seller,it is also different from the broker and the counter for rent,but both network intermediary service providers,such as site administrator multiple attributes.Article 38 of the e-commerce law stipulates that the operators of e-commerce platforms should assume the responsibility of ensuring the personal and property safety of consumers,fulfill the duty of reasonable care and take necessary measures to prevent the infringement of the platform.To verify the qualification information of the operators in the platform for selling the commodities related to the life and health of consumers,endue them with the security obligation of the public security responsibility subject.It is not controversial to adopt the principle of fault liability for these two indirect torts."Electric commercial law" article 38 also provides a platform for operators of tort liability to undertake,paragraph 1 of the did not take the necessary measures of joint and several liability,in order to "knows or should know that" to subjective fault of the platform,the platform is not as as a common infringement behavior,jointly and severally liable together with the platform operators.Paragraph 2 stipulates the corresponding responsibility of failing to fulfill the audit obligation and security obligation.Although there are many disputes over the type and way of undertaking this responsibility.Due to the late rise of China's e-commerce industry,lack of the corresponding legal system of theoretical precipitation and judicial practice,the current law of e-commerce platform operators torsion of liability principle,breach of duty of care,"corresponding liability" provisions and post-review obligations have certain problems and improve space,It is difficult to balance the relationship between the development ofe-commerce industry and the protection of consumer rights and interests.By combing through the indirect infringement system of e-commerce platform operators adopted by the United States,the European Union and Germany and its principle of attribution,"safe haven rules","red flag standards" and "necessary measures",we draw on and put forward suggestions to improve the tort liability system of e-commerce platform operators in China.In view of the problems existing in the legal system related to tort liability of e-commerce platform operators in China,starting with the principle of attribution,adopting the principle of "fault liability as the principle,no fault liability as the exception" principle of attribution,clearly "knowing" the identification criteria,set the "necessary measures" standard.As soon as possible to improve the relevant judicial interpretation to guide the judicial practice how to apply the "corresponding liability" provisions,clear e-commerce platform operators audit obligations of the standards and methods,reasonable sharing of the ultimate responsibility of the parties share,in order to improve China's e-commerce platform operators tort civil liability system to provide reference.