電子商務平臺守門人責任研究

電子商務平臺責任二分的立法模式，源於平臺具有企業與市場身份的雙重性。商場、展銷會依據消費者權益保護法承擔的先行賠付責任在性質上屬替代責任。對開展非自營業務的電子商務平臺配置不同於商場、展銷會的法律責任，有悖於法經濟學原理。企業作為通過市場交易來組織生產的替代機制，電子商務平臺經營者替代平臺內經營者承擔產品責任具有交易成本優勢。平臺基於接入而非所有的原則固然實現了規模效應，但因此免除其本應承擔的產品責任屬平臺的規制套利，故應進一步加強平臺的守門人責任。守門人責任的實質在於承擔第三方責任，代理的規範結構消解了電子商務平臺守門人承擔替代責任的法理障礙。先行賠付責任滿足“控制”與“獲利”的要件，可成為電子商務平臺守門人責任。

The legislative model of dichotomizing e-commerce platform liability originates from the dual identity of platforms as both firms and markets. The advance compensation liability borne by physical marketplaces and trade fairs under the Law on the Protection of Consumer Rights and Interests is vicarious liability in nature. The imposition of liability on e-commerce platforms conducting non-self-operated business that differs from that imposed on physical marketplaces and trade fairs contradicts the principles of law and economics. The firm functions as an alternative mechanism to organize production through market transactions; consequently, e-commerce platform operators possess the advantage of transaction costs in bearing vicarious product liability for merchants operating on their platforms. While platforms, based on the principle of access over ownership, undoubtedly achieve economies of scale, exempting themselves from the product liability they should inherently bear constitutes regulatory arbitrage by platforms. Therefore, the platform’s liability of gatekeepers should be further strengthened. The essence of gatekeeper liability lies in assuming third-party liability. The normative structure of agency dissolves the jurisprudential obstacles preventing e-commerce platform gatekeepers from bearing vicarious liability. The advance compensation liability, which similarly satisfies the requirements of ‘control’ and ‘profit-making’, can thus serve as the foundation for gatekeeper liability for e-commerce platforms.