《侵权责任法》第36条规定了网络服务提供者应对网络侵权损害承担连带责任。文章认为,此规定的正当性无论是从帮助性共同侵权还是法政策考量这两个维度都无法证成,并且在现实中,此规定也受到追偿不能和体系冲突这两项因素的制约。考虑到我国并未对网络侵权行为的客体做人身权和知识产权的区分,建议对于网络服务提供者的责任形态应认定为按份责任,以此平衡互联网产业发展与私人利益的保护。 Article 36 of the Tort Liability Law stipulates that ISPs should jointly and severally bear the damage caused by infringement of the Internet. The article holds that the legitimacy of this provision can not be proved neither in the help of the common tort nor in the legal policy considerations, and in reality, this provision is also constrained by the two factors of recovery and system conflict. Considering that our country does not make a distinction between personal rights and intellectual property rights on the object of network infringement, it is suggested that the responsibility form of network service providers should be identified as the responsibility according to the part, in order to balance the development of Internet industry and the protection of private interests.