On The Audit Obligations Of E-commerce Platform Operators

Based on the purpose of protecting the rights and interests of consumers and the development of platform economy,the Electronic Commerce Law sets up the audit obligation system of e-commerce platform operators.However,it differs from the provision of exempting Internet service providers from the prior review obligation in the traditional field of network infringement,resulting in a great difference in the cognition of the academic circle and the practical circle.At the same time,Article 38,paragraph 2 of Electronic Commerce Law only stipulates the legal liability of audit obligation with the "corresponding liability",does not specify the specific form of legal liability,reduces the clarity of the audit obligation system,causes the situation of its judicial application is not uniform,does not conform to the legislative purpose of Electronic Commerce Law.The audit duty system of e-commerce platform operators is established by the Electronic Commerce Law.Although there has been a similar duty of care of network service providers before,there are still some differences between the content and the scope of application of the audit duty.The former is applicable to general network tort disputes,not including the obligation of prior audit in private law,while the latter is applicable to a specific e-commerce platform liability disputes,which has the nature of public law and private law because of "gatekeeper" theory and the special provisions of E-commerce Law.Therefore,it is necessary to clarify the definition and legal nature of audit obligations and other theoretical basis,so as to pave the way for further analysis and discussion of audit obligations.Through justice cases,this paper summarizes the main dilemmas of e-commerce platform operators in the judicial application of audit obligations,that is,problems in the performance standards of audit obligations and the responsibility form of private law of audit obligations.In terms of the standards for the performance of audit obligations,there are problems such as insufficient space for the application of substantive audit standards and difficulty for consumers to provide evidence under formal audit standards.In the aspect of the liability form of audit duty in private law,there are some problems,such as the scope of application of joint liability is too broad,the method of application of supplementary liability is not uniform and the liability by share is not in line with the legislative intention.Due to the diversity and heterogeneity of the types of e-commerce platforms,audit information of e-commerce platforms and consumer rights and interests,it is impossible to restrict the behavior of e-commerce platform operators with a unified audit obligation system.Therefore,it is necessary to determine the performance standard of audit obligation and the liability form of private law of audit obligation with a typed analysis method.On the basis of respecting the technical capability of platform audit and combining with functionalism,the standards for the implementation of audit obligations are divided according to the types of e-commerce platforms: the super-large platforms with large market scale,strong technical capability of audit or engaging in special e-commerce transactions bear more stringent material audit standards;In contrast,other types of platforms bear common proforma auditing standards.On this basis,we continue to use the typified thinking to identify the form of private law liability for audit obligations: super and large platforms bear joint liability,small and medium-sized platforms bear supplementary liability and share liability in other cases.