《电子商务法》第38条第2款中的“相应的责任”自将《电子商务法》列入立法规划以来便争议较大,其责任形态的明确一直是司法实践与学术讨论上的焦点。“相应的责任”的责任形态的确立应当以《电子商务法》第32条第2款中的“关系消费者...《电子商务法》第38条第2款中的“相应的责任”自将《电子商务法》列入立法规划以来便争议较大,其责任形态的明确一直是司法实践与学术讨论上的焦点。“相应的责任”的责任形态的确立应当以《电子商务法》第32条第2款中的“关系消费者生命健康的商品或服务”、“资质资格未尽到审核义务”以及“安全保障义务”进行展开,同时应当兼顾立法宗旨与立法体系的连贯。“相应的责任”之责任形态的不清将会影响以责任形态为基础的归责原则与举证责任的分配。责任形态的“相应的责任”应当解释为按份责任的责任形态才能更好地为消费者权益提供保护以及促进电子商务的良好发展。The “corresponding liability” in Article 38, Paragraph 2 of the E-Commerce Law has been controversial since the E-Commerce Law was included in the legislative plan, and the clarification of its liability form has always been the focus of judicial practice and academic discussions. The establishment of the liability form of “corresponding liability” shall be carried out in accordance with the “goods or services related to the life and health of consumers”, “the obligation to review qualifications and qualifications” and “the obligation to ensure security” in paragraph 2 of article 32 of the E-Commerce Law, and shall take into account the coherence of the legislative purpose and the legal system. The ambiguity of the form of liability of “corresponding liability” will affect the principle of attribution and the allocation of the burden of proof based on the form of liability. The “corresponding responsibility” in the form of responsibility should be interpreted as the form of responsibility according to the responsibility, so as to better protect the rights and interests of consumers and promote the sound development of e-commerce.展开更多
文摘《电子商务法》第38条第2款中的“相应的责任”自将《电子商务法》列入立法规划以来便争议较大,其责任形态的明确一直是司法实践与学术讨论上的焦点。“相应的责任”的责任形态的确立应当以《电子商务法》第32条第2款中的“关系消费者生命健康的商品或服务”、“资质资格未尽到审核义务”以及“安全保障义务”进行展开,同时应当兼顾立法宗旨与立法体系的连贯。“相应的责任”之责任形态的不清将会影响以责任形态为基础的归责原则与举证责任的分配。责任形态的“相应的责任”应当解释为按份责任的责任形态才能更好地为消费者权益提供保护以及促进电子商务的良好发展。The “corresponding liability” in Article 38, Paragraph 2 of the E-Commerce Law has been controversial since the E-Commerce Law was included in the legislative plan, and the clarification of its liability form has always been the focus of judicial practice and academic discussions. The establishment of the liability form of “corresponding liability” shall be carried out in accordance with the “goods or services related to the life and health of consumers”, “the obligation to review qualifications and qualifications” and “the obligation to ensure security” in paragraph 2 of article 32 of the E-Commerce Law, and shall take into account the coherence of the legislative purpose and the legal system. The ambiguity of the form of liability of “corresponding liability” will affect the principle of attribution and the allocation of the burden of proof based on the form of liability. The “corresponding responsibility” in the form of responsibility should be interpreted as the form of responsibility according to the responsibility, so as to better protect the rights and interests of consumers and promote the sound development of e-commerce.
