Study Of Laws Against Unfair Network Competition

ABSTRACT:Legal lag leads Chinese people to a dilemma where no appropriate laws can be followed in coping with unfair competition in China’s Internet market and makes the market a disordered state even to the extent that may evoke an exclamation "How a random world it is!" Chinese lawyers have a limited knowledge of network technology and of unfair network competition means at present since cyber economy in China has only a short history of more than ten years. There is theoretical and practical significance to discuss the current situation and the causes of unfair network competition, provide a panoramic view on it, clarifies its context and its deep-layer factors. A straw shows which way the wind blows. Based on anti-unfair competition law at home and abroad, this dissertation provides a primary research on various law problems in unfair network competition through typical case analyses so as to make a comprehensive survey of "the sea of market economy " through the perspective view of a drop of water.Unfair network competition refers in the network market competition, contrary to the principle of good faith, using network technology and the way for web users resources, seek illegal economic interests, damage the interests of other operators and consumers and the public, disrupt social economic order. Adopting the methods of synthesis, induction, comparison and analysis, this dissertation probes the origin and development of the network, the formation of network market and the emergence of unfair competition in network. By carding the source of unfair network competition, it anatomize comprehensively the characteristics of the network market competition and the present situation of unfair network competition in order to find out its causes, master its changes, establish a common sense for lawyers in meeting the challenge rich in features of this time.A type analysis method to organize and categorize current unfair network competition phenomena and makes a relatively detailed discussion on such typical cases as software conflict, keyword bidding services, network domain name, web links, site name class is discussed in detail. Categorization is the basis of regulating unfair network competition. Put forward the type analysis standard:judging mainly by interests gain supplemented by the implementation of acts. After analyzing the nature of specific acts, the author defines the acts that can be included in the "Anti-unfair Competition Law", those that cannot and those that cannot be categorized but can be handled under the general terms. Unfair network competition acts are categorized typical and atypical types in general, each further divided into a number of specific types.Through legal analysis, comparing with the legal relation theory on traditional unfair competition, this dissertation analyzes the legal relationship between the involved parties, discusses how to conduct legal recognition to of unfair network competition acts, and describes in detail the three elements of legal relation of unfair network competition including the subject, the object, and the rights and obligations.On the basis of above analysis, solutions without precedent are presented in this dissertation in view of the existing plight of legal remedy and judicial relief against unfair network competition. In this dissertation, puts forward the idea of "separate legislation" against unfair network competition based on the analyses and elaboration of key issues revised in "Anti-unfair Competition Law" from the three aspects of legislation, law enforcement and judicature. The proposed solution:Identify the position of legislation for modern anti-unfair competition. The legislation position of China’s current "Anti-Unfair Competition Law" is ambiguous. The value orientation of modern anti-unfair competition law should not only protect the interests of the competitors but also that of the other market participants, consumers and the public.Choose flexible legislation mode to cope with the emerging new types of unfair competition in the future. The single enumeration legislation mode of current "anti-unfair competition law" should be changed and adopt legislation mode that combines the general terms with the specific enumeration. Reform the existing legal liability system defined by "Anti-Unfair Competition Law". Unlike current international legal control mode which gives priority to civil remedies and is supplemented by criminal sanctions, China’s "Anti-Unfair Competition Law" adopts the mode which mainly relies on administrative control supplemented by judicial control and this is a situation liable to result in excessive administrative intervention. The author believes that the idea control mode against China’s unfair competition should give priority to judicial control which is supplemented by administrative control and change administrative punishment primarily to civil remedies.Establish separate legislation against unfair network competition when conditions are appropriate. Network economy is a wholly new type of economy which has broken national borders, changed ways of life of human beings and has also changed many habitual ideas of people. Since the incomparable advantage of its virtuality, high-tech content and breakthrough of time and space limit, network economy enjoys eye-popping growth in the share of the whole national economy and its importance can’t be emphasized enough. Meanwhile, at present laws and regulations concerning network market can only be found bits and pieces in various general economic laws and government documents. Therefore, it is the requirement of the times and the demand of historic development to integrate these scattered rules and regulations into a separate legislation for the network and cultivate a batch of judges with professional qualifications and a global vision to meet the challenge of network development. China’s economic aggregate ranks among the top in the world and the scale and technology of network economy are at the same starting line with the developed countries, and we therefore look forward to an early start of Chinese cyber legislation program. China has reason, necessity, the ability, and the conditions to take the lead in the network economy legislation and add a brilliant Chinese imprint in the world legal history.