摘要
为保护网络消费者的权益,我国立法为电商平台设置了严格的法律责任,但司法判例中消费者得偿比例极低。通过分析平台的单一连带、单一过错、连带与过错复合责任立法,对照司法实践的做法,会发现立法上对平台的经济法前置义务、可连带及可追偿范围规定不清,在平台责任成立时间上部门法间存在冲突,在认定平台主观明知的标准上,司法解释方案又严重肢解了立法原义。实际上,这是平台在消费关系中负有的经济法义务,被纳入民事归责体系时出现的制度困境。因此,应立足于交易前、损害发生后平台与消费双方间关系的转变,抓住商品服务交易外的信息利益关系,重新梳理并明确平台的法定注意义务,构建外部信息支持机制,优化连带与追偿模式,形成适应网络经济健康发展的平台责任立法。
In order to protect the rights and interests of online consumers, China’s legislation sets strict legal liabilities for e-commerce platforms, but the proportion of consumers getting compensation in judicial precedents is very low. Through three cases of single joint and several liability, two cases of single fault liability, and three cases of joint and several and fault composite liability, different types of liability are faced with the uncertainty of terms such as“know” and “necessary measures” in judicial determination, which also reflects the normative conflict between economic law and civil law on the same matter. From a comprehensive point of view, the practical disputes reflect the pedigree of legislative problems in four aspects: First, judging whether the platform is fully joint and several according to the knowledge of the damage, is in conflict with the joint and several liability only for the expanded part established by the civil law.Second, there is an obligation for the platform to actively find illegal operations in legislation, but there is a lack of fair operating standards. Third, whether the scope of joint and several liability undertaken by the platform can reach punitive damages, whether it is limited to the liability for the seller’s damage, and the specific recovery method after joint and several are not clear enough.Fourth, in terms of the standard of subjective knowledge of the identification platform, the legal interpretation technically excludes the presumption of “should know” and the rational use of information outside the case, which seriously dismembers the original meaning of legislation.Fundamentally speaking, this is the specific embodiment of the legal conflict caused by the platform being only identified as the third party in the consumer contract relationship, ignoring the substantive impact of its mastery of data information and algorithm technology on consumer transactions, and its specific economic law obligations are not fully considered when incorporated
作者
肖峰
Xiao Feng(Law School,Xiangtan University,Hunan Xiangtan 411105,China)
出处
《上海财经大学学报（哲学社会科学版）》
CSSCI
北大核心
2022年第1期137-152,共16页
Journal of Shanghai University of Finance and Economics
基金
国家社科基金研究专项重大项目“社会主义核心价值观融入法治建设机理研究”子课题三“社会主义核心价值观融入严格执法研究”(17VHJ009)。
关键词
平台责任
消费者权益
前置义务
信息利益
responsibility of platform
consumers’rights
prepositive liability
informational interests
