On The Determination Of Liability For Tort Of E-commerce Platform Operators

Our country’s "Consumer Rights Protection Law" and "E-commerce Law" stipulate the tort liability of e-commerce platform operators,but there are still some problems.Through the cases in practice,this paper summarizes the legal problems existing in the recognition of tort liability by e-commerce platform operators in the case of multiple tort: First,it is impossible to clarify the content of the legal obligations of the operators of e-commerce platforms and the standards for determining the obligations of breach of contract;second,the subjective faults of e-commerce platform operators cannot be distinguished;third,it is impossible to determine Article 38,2 of the E-Commerce Law The specific form of "corresponding responsibility" in the paragraph.When judging whether the operator of the e-commerce platform bears tort liability,it mainly analyzes the principle of liability and the constituent elements.About the principle of imputation,it is finally recognized as the principle of fault liability by combining with relevant legislative provisions.Therefore,on the premise of adhering to the principle of fault liability,we analyze the constituent elements of e-commerce platform operators’ tort liability.Among them,it focuses on analyzing the three types of persecution and subjective faults that violate statutory obligations.Article 44 of the "Consumer Rights Protection Law" stipulates the information disclosure obligations of e-commerce platform operators,and stricter "true and effective" standards should be adopted when determining.The first paragraph of Article 38 of the E-commerce Law stipulates the legal obligation of e-commerce platform operators to take necessary measures.In addition to the time and effectiveness of the measures advocated by most scholars,the consideration factors should also include the adequacy of the measures.And the size of the subjective fault is two factors,not the effectiveness of the measures.Article 38,paragraph 2 of the "E-Commerce Law" stipulates the review and security obligations of e-commerce platform operators.The standard for review obligations should adopt “ dynamic review” rather than the substantive review or formal review in the “static review”advocated by current scholars;while the standards for the safety guarantee obligations are due to the fact that in the field of e-commerce E-commerce platform operators have heavier management and supervision responsibilities than ordinary place managers,and they should have heavier security obligations than the burden.After determining that the conduct of the e-commerce platform operator meets the constitutive requirements of infringement,the form of liability for the infringement shall be clarified.Article 44 of the Consumer Rights Protection Law provides for untrue joint and several liability for failure to perform information disclosure obligations.Article 38,paragraph 1,of the Electronic Commerce Law provides for joint and several liability for failure to take necessary measures.Among them,the "obvious infringement" standard should be adopted when judging whether an e-commerce platform operator is at fault,that is,only when there is an obvious tort can the operator be found to be at fault subjectively.The second paragraph of Article38 of the "E-Commerce Law" stipulates the corresponding responsibilities for failure to perform audit obligations and safety guarantee obligations.In addition,for the subjective fault of the e-commerce platform operator in paragraph 2,the "general infringement" standard should be adopted,that is,although the infringement is not obvious,as long as the goods or services involving life and health are involved,the subjective fault should be determined.Therefore,compared with the "obvious infringement" standard of the previous paragraph,it can be considered that the degree of fault in Article 38,paragraph 2 is smaller than that in paragraph 1.By sorting out the relevant systems of platform operators in foreign countries,such as "safe harbor rules","red flag standards",review obligations,etc.,we can further improve the tort liability system of e-commerce platform operators in my country-clarify the determination of subjective fault Standards and clear pre-review obligations.Finally,by clarifying the content and identification standards of the three statutory obligations of e-commerce platform operators,distinguishing their subjective faults,and clarifying the form of responsibility for “ corresponding responsibilities”,it is expected to provide reference for practice.