摘要
在网络服务提供者审查义务问题上,中国法律存在"悖论式并行"的现象,即私法上豁免其审查义务,而公法上明确规定其负有审查义务。这种"悖论式并行"导致避风港规则处于公法的阴影之下,影响其稳定性,具体表现在:其一,公法审查义务向私法审查义务直接过渡;其二,网络服务提供者在未能履行公法审查义务的情况下,被认定违反公法规范,从而被判定未能尽到合理注意义务,对侵权行为的发生具有过错,需要承担侵权责任;其三,网络服务提供者履行公法审查义务导致其私法注意义务水平的提高。这些冲突主要源于网络服务提供者的公法审查义务对其私法义务产生了不当影响,其根本原因在于公私法之间关系在这个问题上的失序,公法规范无原则地、全面地进入了私法领域。要防范这种不当影响则需:其一,建立公法审查义务与私法审查义务之间的"防火墙";其二,确立履行公法审查义务的免责机制。
There is a paradox in Chinese law on the issue of ISP （ Internet service prorider） ＇ s duty of monitor： this duty is explicitly stipulated in public law, but exempted in private law. This ＂paradox parallel＂ has pulled the safe harbor rules into the shadow of public law, affecting its stability and producing the following consequences ： firstly, the duty of monitor is directly transfromed from a public law duty into a private law duty; secondly, when an ISP fails to fulfill its public law duty of monitor, it will be found to have failed to fulfill its due care obligation, and consequently will be at fault and must bear tort liability in the occurrence of an infringement ; and thirdly, the performance by ISPs of their duty of monitor under public law has raised level of their duty of care under private law. These clashes arise mainly from the undue influence of the ISP＇ s public law duty of monitor on its private law duty. The root cause of these clashes is the disorder of the relationship between public law and private law on this issue ： public law norms have entered into the field of private law in an unprincipled and comprehensive way. To prevent this undue influence, the following two measures should be taken： firstly, to build a ＂firewall＂ between the public law duty of monitor and the private law duty of monitor; and secondly, to set up a mechanism for the exemption of the public law duty of monitor.
出处
《环球法律评论》
CSSCI
北大核心
2018年第1期100-109,共10页
Global Law Review
