| The advent of the Internet has led to an explosion of e-commerce,which has made life easier,enriched people’s lives and changed the way they work and learn.However,the advent of e-commerce has also given rise to a host of controversies.Among them,disputes arising from e-commerce are the most common and complex,and the most common disputes encountered by the community are those arising from online shopping.On account of the characteristics of electronic transactions,these disputes have bother in resolving and protecting the legitimate rights and interests of consumers.Although China has enacted relevant laws to address these issues,there are still many problems to be resolved.In summary,this thesis clarifies the legal status of e-commerce platform operators from the perspective of better protecting the interests of consumers,points out the types of liability they bear in joint infringement,and puts forward the problems in the legal application of the tort liability of e-commerce platform operators in China,taking into account the current status of domestic legislation and overseas systems,and makes corresponding suggestions to promote the benign development of e-commerce platforms in China.Besides the introduction,this thesis is divided into four main sections,which are shown below:The first part defines e-commerce platform operators,clarifies their legal status and types of tort liability.This thesis adopts the "new type of transaction intermediary theory",which holds that e-commerce platform operators should bear conditional and untrue joint and several liability for breach of information disclosure obligations,joint and several liability for failing to take or failing to take necessary measures in a timely manner,and "corresponding liability" for failing to fulfill their safety and security obligations and auditing obligations.The second part examines the current legislation and case law on the liability of ecommerce platform operators and identifies problems in their application,including unclear criteria for defining "knowledge",the lack of "necessary means" standard,incomplete provisions on "corresponding liability",the lack of clear definitions of duty of care and duty to defend,the lack of a uniform approach in resolving e-commerce disputes,and the complexity of the liability regime and high costs of proof.The third part compares the tort liability regimes of overseas e-commerce platform operators,and the systems that can be learnt from them in China,including the clarification of the "knew or should have known" standard,the prior review system,the rationalisation of necessary measures and the supplementation of no-fault liability.The fourth part proposes to improve the enforcement of the legal application of the tort liability of e-commerce platform operators.On the basis of the judicial interpretation of the tort liability of e-commerce platform operators,it is recommended that the criteria of "knowledge" should be clarified,the criteria of "necessary measures" should be set,the specific meaning of "corresponding liability" should be clarified and the rules of allocation of the burden of proof should be adjusted.Furthermore,it is proposed that the settlement mechanism for e-commerce disputes should be perfected and the rules for the allocation of the burden of proof should be adjusted. |
