电商平台经营者“相应的责任”的解构与适用——以《电子商务法》第38条第2款为中心

Deconstruction and Application of the “Corresponding Liability” of E-Commerce Platform Operators—Centered on Paragraph 2 of Article 38 of the “E-Commerce Law”

摘要: 本文以《电子商务法》第38条第2款电商平台经营者“相应的责任”为核心研究对象，首先解构该条款与第1款的逻辑冲突，即生命健康法益与较轻法益对应的责任方式不匹配，并明确其构成要件含生命健康商品前提、过失主观状态等。继而分析平台核心义务：安全保障义务的线上属性与间接侵权特征，以及资质审查义务的三类来源、形式与实质审核区分及理性人履行标准。还探讨责任形态争议，包括是否涵盖民行刑三类责任，及连带责任、补充责任、按份责任的适用性缺陷。最后提出适用路径：违反资质审查义务担连带责任，违反安全保障义务担补充责任。

Abstract: This paper takes the “corresponding liability” of e-commerce platform operators as stipulated in Article 38, Paragraph 2 of the “E-Commerce Law” as its core research object. First, it deconstructs the logical conflict between this paragraph and Paragraph 1, namely the mismatch between the liability methods corresponding to the legal interests of life and health and those corresponding to less significant legal interests, and clarifies the constituent elements of this liability, including the premise of commodities related to life and health and the subjective state of negligence. Then, it analyzes the core obligations of platforms: the online nature and characteristics of indirect infringement of the duty of care for safety, as well as the three sources of the duty of qualification examination, the distinction between formal and substantive examination, and the performance standard of a reasonable person. It also discusses disputes over the form of liability, including whether it covers the three types of liabilities in civil, administrative and criminal law, and the defects in the applicability of joint and several liability, supplementary liability, and several liability. Finally, it puts forward the application path: bearing joint and several liability for violating the duty of qualification examination, and bearing supplementary liability for violating the duty of care for safety.