摘要
互联网平台具有竞争主体和市场规制者的双重身份。基于市场规制者身份产生的互联网平台责任,又可区分为双重结构,分别为回应监管义务对监管机构产生的平台责任,以及与规制市场的权力相应的对平台内用户的平台责任。通过梳理相关领域的立法现状,可以得知平台责任体系处于分散且不统一的状态。近些年来,监管机构越来越倾向于使用"主体责任"对互联网企业进行监管。然而,对"主体责任"进行规范性分析后可知,作为法律概念其含义并不明确,且可能会忽视平台责任限度这一关键问题。为平台责任确定限度是一件重要且困难的事情,不仅需要考虑政府介入平台进行监管和平台配合监管的必要性,还要考虑平台是否应当或可以预知负外部性的发生。鉴于监管逻辑在界定互联网平台责任时的不足,应当引入更为多元、灵活和有效的治理逻辑。
The Internet platform has the dual identity as the competition subject and market regulator. Based on the identity as the market regulator, the responsibility of the Internet platform can also be distinguished as a dual structure, which separately, are the platform re- sponsibility toward the regulatory agencies in response to the regulatory obligation, and the platform responsibility toward the users in the platform corresponding to the platform＇s power to regulate the market. By sorting out the status quo of legislation in related fields, we will find that the system of platform responsibility is in a state of dispersion and non-uniformity. In the past years, regulatory agencies have increasingly tended to use ＂major responsibility＂ to reg- ulate Internet platform companies. However, after a normative conceptual analysis of the ＂major responsibility＂, it shows that, as a legal concept, its meaning is not clear. And the key issue of limitation of the platform responsibility may be deemphasized. It is an essential yet difficult task to define an appropriate set Of limitation for platform responsibility. It is necessary to consider not only the necessity of government＇s intervention in the platform regulation and of the platform＇s coordination as well, but also whether the platform should or can predict the occurrence of negative externalities within the platform. Given the deficiencies of regulatory logic in designing Internet platform responsibility system, we should embrace a more versatile, flexible, and effective governance logic.
出处
《财经法学》
2018年第5期49-63,共15页
Law and Economy
关键词
平台责任
监管
主体责任
平台治理
Platform responsibility
Regulation
Major responsibility
Platform governance
