Deconstruction of the"Corresponding Liability"of E-commerce Platform Operators for Violating Their Security Obligations:Centered on Proportional Joint and Several Liability
Article 38(2)of the Electronic Commerce Law stipulates that when operators within an e-commerce platform intentionally infringe upon consumers' rights and interests by providing goods or services related to life and health,the platform operator bears"corresponding liability"for breaching its security obligations.Semi-superimposed separate torts exhibit great distinctions from joint torts,concurrent torts,third-party torts under multi-actor tort regimes,and superimposed separate torts and typical separate torts under separate tort regimes.The distinctions are manifested in five aspects:actors,illegality,resulting harm,subjective state,and causal force.The scenario where operators within a platform intentionally infringe upon consumers' rights through goods or services affecting life and health,with the platform operator concurrently breaching its security obligations,satisfies the constitutive elements of semi-superimposed separate tort liability.Joint liability,supplementary liability,and several liability fail to elucidate the precise nature of"corresponding liability"due to their excessive rigidity,violation of the principle of personal responsibility,and incomparability of intentional and negligent torts.Instead,"corresponding liability"should be construed as proportional joint and several liability.Regarding internal recourse and contribution,when liability rests solely on one platform operator and one intra-platform operator,both parties bear joint and several liability for the overlapping portion of causal force,while each bears several liability for the non-overlapping portions.Where multiple intra-platform operators and one platform operator are liable,all liable parties bear joint and several liability for the overlapping portion of causal force;the non-overlapping portion is solely borne by the intra-platform operator(s)responsible for the entirety of the harm.Concerning the right of recourse,both the platform operator and the intra-platform operators possess mutual rights of recourse.A platform operator or intra-platform operator that has paid more than its proportional share may seek contribution from other liable parties who have underpaid,based on a specific liability ratio.
security obligationssemi-superimposed separate tortsproportional joint and several liabilityliability proportion
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