论团购网站运营商的侵权责任
发布时间：2019-06-11 03:54
【摘要】：现今随着团购网站的兴起与膨胀，网络团购交易日渐渗透于我们的日常生活当中。由于与日常实物交易相比，，网络团购中的产品价格更为便宜、款式更为多样、配套服务更为全面，团购网站逐渐成为了广大消费者的购物首选。然而，伴随着网络团购活动的蓬勃发展，部分团购网站运营商为了获取更多的商业利润，通过在网上发布虚假产品信息、虚假产品评价、强制消费等行为误导、诱使消费者参与网络团购交易并使其合法权益遭受损害。鉴于目前团购网站运营商的侵权行为种类诸多且日渐频繁，笔者以为，确有必要在我国现行立法的框架内对其予以规制，以保护网络团购交易中消费者的合法权益，并规范整个网络团购市场的法律秩序。 针对上述问题，本文首先在第一部分对我国团购网站运营商侵权行为的存在现状予以总结并归类。其中，笔者以为，结合消费者近几年对团购网站运营商的投诉数据，团购网站运营商的自己侵权行为又应当包括以下五种类型：发布虚假团购信息等团购欺诈行为、强制消费与限制消费行为、拒不退款与拒开发票行为、泄露消费者个人信息行为、侵犯他人注册商标行为。 在介绍与总结团购网站运营商侵权行为的同时，笔者亦在本文的第二部分对团购网站运营商侵权行为的损害后果予以具体化，强调该类侵权行为在网络团购交易中对消费者的财产权、生命健康权、知情权、公平交易权、自主选择权、求偿权以及个人信息权等财产和人身权益的侵犯。并且，笔者还就团购网站运营商侵权行为与上述损害后果之间的因果联系子在本文的第三部分予以具体分析。 随后，笔者在本文第四部分还就团购网站运营商的主观过错应当如何认定予以进一步阐述。笔者认为，结合我国团购网站的发展现状，团购网站运营商的主观过失的认定则要区分团购网站运营商在不同情形下所提供的不同类型的服务。其中，当团购网站运营商作为网络服务提供商中的内容服务提供商时，其对自己发布的信息负有严格的事先审查义务，而当团购网站运营商作为网络服务提供商中的技术服务提供商时，对于他人发布的信息仅负有一般人的合理注意义务，在未履行上述两种义务的情形下，团购网站运营商将被认为明知或应知其侵权行为的损害后果，也即，团购网站运营商存在主观上的过错并应当因此承担相应的侵权责任。 最后，笔者认为团购网站运营商的侵权行为侵害对象广泛且属于学理上的大规模侵权行为，并主张惩罚性赔偿制度应作为团购网站运营商侵权责任的承担方式并在司法实践予以适用。
[Abstract]:Nowadays, with the rise and expansion of group purchase website, online group purchase transaction permeates our daily life day by day. Compared with the daily physical transaction, the online group buying products are cheaper, the styles are more diverse, and the supporting services are more comprehensive. The group purchase website has gradually become the first choice of shopping for the majority of consumers. However, with the vigorous development of online group buying activities, some group buying website operators mislead through publishing false product information, false product evaluation, forced consumption and so on in order to obtain more commercial profits. Induce consumers to participate in online group buying transactions and damage their legitimate rights and interests. In view of the fact that there are many kinds of infringements and become more and more frequent among the operators of group buying websites, the author thinks that it is necessary to regulate them within the framework of the current legislation of our country in order to protect the legitimate rights and interests of consumers in online group buying transactions. And standardize the legal order of the whole online group buying market. In view of the above problems, this paper first summarizes and classifies the existing situation of group purchase website operators in China in the first part. Among them, the author thinks that, combined with the complaint data of consumers against the operators of the group purchase website in recent years, the infringement of the operators of the group purchase website should include the following five types: publishing false group purchase information and other group purchase fraud. Compulsory consumption and restriction of consumption, refusal to refund and invoice, disclosure of consumer personal information, infringement of registered trademarks of others. While introducing and summarizing the infringement of group purchase website operators, the author also specifies the damage consequences of group purchase website operators in the second part of this paper. It is emphasized that this kind of tort infringes on the property rights and personal rights of consumers, such as property rights, right to life and health, right to know, right to fair transaction, right of independent choice, right of claim and right of personal information in online group buying transactions. In addition, the author also analyzes the causality between the infringement of group buying website operators and the above damage consequences in the third part of this paper. Then, in the fourth part of this paper, the author also on the subjective fault of group buying website operators should be further elaborated. The author believes that, combined with the current situation of the development of group-buying websites in China, the subjective fault of group-buying website operators should distinguish between the different types of services provided by group-buying website operators under different circumstances. Among them, when the group purchase website operator acts as the content service provider in the network service provider, it has the strict prior examination obligation to the information it publishes. When the group buying website operator acts as the technical service provider in the network service provider, it only has the reasonable duty of care of the general person for the information published by others, and in the case of failure to perform the above two obligations, Group purchase website operators will be considered to know or should know the damage consequences of their infringement, that is, group purchase website operators have subjective mistakes and should bear the corresponding tort liability. Finally, the author believes that the infringement of group purchase website operators is a wide range of infringement objects and belongs to the theoretical large-scale infringement. It is also advocated that the punitive damages system should be used as the way to bear the tort liability of group purchase website operators and be applied in judicial practice.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2496990
[Abstract]:Nowadays, with the rise and expansion of group purchase website, online group purchase transaction permeates our daily life day by day. Compared with the daily physical transaction, the online group buying products are cheaper, the styles are more diverse, and the supporting services are more comprehensive. The group purchase website has gradually become the first choice of shopping for the majority of consumers. However, with the vigorous development of online group buying activities, some group buying website operators mislead through publishing false product information, false product evaluation, forced consumption and so on in order to obtain more commercial profits. Induce consumers to participate in online group buying transactions and damage their legitimate rights and interests. In view of the fact that there are many kinds of infringements and become more and more frequent among the operators of group buying websites, the author thinks that it is necessary to regulate them within the framework of the current legislation of our country in order to protect the legitimate rights and interests of consumers in online group buying transactions. And standardize the legal order of the whole online group buying market. In view of the above problems, this paper first summarizes and classifies the existing situation of group purchase website operators in China in the first part. Among them, the author thinks that, combined with the complaint data of consumers against the operators of the group purchase website in recent years, the infringement of the operators of the group purchase website should include the following five types: publishing false group purchase information and other group purchase fraud. Compulsory consumption and restriction of consumption, refusal to refund and invoice, disclosure of consumer personal information, infringement of registered trademarks of others. While introducing and summarizing the infringement of group purchase website operators, the author also specifies the damage consequences of group purchase website operators in the second part of this paper. It is emphasized that this kind of tort infringes on the property rights and personal rights of consumers, such as property rights, right to life and health, right to know, right to fair transaction, right of independent choice, right of claim and right of personal information in online group buying transactions. In addition, the author also analyzes the causality between the infringement of group buying website operators and the above damage consequences in the third part of this paper. Then, in the fourth part of this paper, the author also on the subjective fault of group buying website operators should be further elaborated. The author believes that, combined with the current situation of the development of group-buying websites in China, the subjective fault of group-buying website operators should distinguish between the different types of services provided by group-buying website operators under different circumstances. Among them, when the group purchase website operator acts as the content service provider in the network service provider, it has the strict prior examination obligation to the information it publishes. When the group buying website operator acts as the technical service provider in the network service provider, it only has the reasonable duty of care of the general person for the information published by others, and in the case of failure to perform the above two obligations, Group purchase website operators will be considered to know or should know the damage consequences of their infringement, that is, group purchase website operators have subjective mistakes and should bear the corresponding tort liability. Finally, the author believes that the infringement of group purchase website operators is a wide range of infringement objects and belongs to the theoretical large-scale infringement. It is also advocated that the punitive damages system should be used as the way to bear the tort liability of group purchase website operators and be applied in judicial practice.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
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