Study On Legal Regulation Of Unfair Competition Under The Internet Environment

Ludwig Wilhelm Erhard,a famous German economist,the author of “THE PROSPERITY FROM COMPETITION”,once said: “A competitive economic system is the most economical and democratic one in all economic systems.Competition is the most effective way to achieve and guarantee prosperity”.Competition drives enterprises to continuously strengthen management and save costs through survival of the fittest of the market participants,encourages enterprises to constantly carry out research & development and innovation,and promotes enterprises to update technologies and products to provide quality goods and services recognized by consumers,so as to achieve the goal of profit maximization.Historically,competition has enabled the continuous development of productive forces,and has always stimulated the vitality of the market and promoted continuous improvement of the society.Today,Internet technologies are growing rapidly.The Internet economy has become the main form of economic activity and competition development.The growth rate of the Internet economy in the new normal of China's economy is still rapidly rising.The revenue scale has rapidly increased from RMB 258.55 billion in 2011 to RMB 870.62 billion in 2014.It will reach RMB 2.02026 trillion in 2018.Competition and unfair competition are closely related.In the Internet environment,unfair competition emerges in an endless stream and is full of tricks.In order to safeguard the interests of operators,consumers and the general public,and maintain a fair competition order,it is necessary to make effective legal regulation on unfair competition on the Internet,that is,to make all-around and systematic adjustments from the perspective of legal concepts,legal thinking,identification theory,categorization,civil procedure and responsibility and so on.With respect to the chaos of unfair competition on the Internet,this paper forms general identification theory and categorization upon painstaking research and extraction of abstract concepts based on systematic thinking.At the same time,it puts forward relevant legal advice on the civil procedure and liabilities of unfair competition on the Internet for the future.Except the Introduction,this paper consists of five chapters about 170,000 words in total.Chapter defines the concept of unfair competition on the Internet.Economic competition refers to the behavior of two or more subjects engaged in economic activities to gain economic benefits by offering favorable price,quantity,quality,service or other conditions in a particular market.Competition does not always exist.Only under a commodity economy which fulfils personality equality,independent interests of subjects and specialized division of labor existing in the society will there be competition.Where there is competition,there is unfair competition.Traditional “offline” competition of enterprises under the environment of Internet economy has evolved into a broad competition with “offline” and “online” competition influencing and penetrating each other.Competition is basically related to the Internet.All Internet-related economic activities that violate the integrity practices can be identified as acts of unfair competition on the Internet.Due to the impact of the Internet,unfair competition on the Internet is often characterized by abundant means and diverse forms featuring instantaneity,interlacement and elusiveness.It also has the characteristics of interference technology as means,protecting the welfare of consumers,free riding,ecological competition for the purposeChapter categorizes unfair competition in the Internet environment.The higher the degree of concept abstraction is,the more vacuous the content is.In order to cope with the lack of categorization of traditional unfair competition in the face of emerging acts of Internet unfair competition,categorization of Internet unfair competition is a realistic need and has positive significance of legal regulation.Categorization not only can clarify the boundaries of law and is conducive to the application of law,but also can limit the discretionary power of judges to prevent the excess generalization of general provisions and can provide guidance for the market participants for their competition behaviors.Traditional categorization of unfair competition can still be applied under the Internet environment.Misleading publicity,commercial discrediting and infringement of business secrets have changed from "offline" to "online".Although some may have the characteristics of the Internet,substantive judgment rules have not changed much.Article 12 called "Internet Article" which was added in the new Anti-Unfair Competition Law on the basis of the former Anti-Unfair Competition Law is a categorization specifically for unfair competition on the Internet.The types of Internet unfair competition are complex,including not only Internet counterfeiting related to domain name,bidding rank and webpage,but also software interference,traffic hijacking and other emerging Internet unfair competition.All these types of unfair competition may actually intertwine with and overlap each other in economic activities,but will not affect the people's court's identification of each act.It is inevitable that the categorization of Internet unfair competition may be far from being complete.Therefore,categorization and general provisions should be divided and coordinated with each other so as to maintain the smooth operation of the entire anti-unfair competition law system.Chapter III empirical analysis of unfair competition in Internet environment.With the help of the thinking of data statistics,this paper glimpses the actual situation of unfair competition on the Internet based on 229 collected cases.In terms of time,unfair competition on the Internet has shown a tendency of frequent occurrence.The number of cases has soared since 2005.In terms of space,unfair competition on the Internet is generally concentrated in economically developed and active regions.Beijing,Shanghai and Guangdong are the provinces and municipalities that have witnessed the most Internet unfair competition cases.In terms of product types,search engine-related cases,security software-related cases and browser-related cases are numerous and the most representative cases of unfair competition on the Internet.With the continuous development of Internet technologies,other products related to domains,games and other aspects are also gradually increasing.They intertwine with each other and influence each other.Along with the complicated Internet unfair competition,there are judicial difficulties in applying the Anti-Unfair Competition Law.Obscure legal nature,restrictions on competition relations and lack of general provisions lead to uncertainty of the Unfair Competition Law which is vividly called “nothing-regulated law”.The Anti-Unfair Competition Law is an important part of intellectual property law and is a supplementary law to intellectual property protection.Different from the way of regulating the exclusive rights of intellectual property rights,the Anti-Unfair Competition Law protects the rights and interests as a whole by the thinking of competition law.Competition relation will no longer be a prerequisite for unfair competition in the face of new acts of unfair competition.Abstract general provisions can be used for the identification of unfair competition.Chapter IV elaborates the identification of unfair competition in the Internet environment.THE ANTI-UNFAIR COMPETITION LAW is the legalization of the morality of economic activities and embodies business ethics of strong economic competition.Competition should be fair.Only in fair competition can people choose free competition.The principle of fairness is the fundamental principle of fair competition.The subject of competition is people.The market participants involved in economic activities should be honest and trustworthy and should respect commitments.The principle of good faith is the core principle of fair competition.The outcome of competition is related to consumers and the overall welfare of all members of the public.The public interest is a complementary principle of fair competition.It is morally reprehensible for violating the principle of fair competition.Illegitimacy of competition is the legal standard and core of identifying unfair competition on the Internet.Its legitimacy identification takes accepted business morals and the principle of good faith as the basis for value judgments,is conducted based on damages,and at the same time balances interests on the basis of three dimensions including the operator's interests,the consumers' interests and the public's interests.With respect to specific cases,the technologies involved,business models,competition order,self-discipline codes and consumer interests and other factors are required to consider.The criteria in law should be first used to make judgments among the many identification elements.The types or clauses set forth by law that can be used for identification should be given priority.In order to identify the “illegitimacy” and eliminate the ambiguous boundaries of value judgments,only when the standards in law are not applicable,will extra-legal standards be supplemented and will business ethics,practices and industrial self-discipline codes and other factors be consulted,so as to identify whether any behavior of any market participant constitutes illegitimacy from comprehensive perspectives based on specifics of the case.Chapter V puts forward some suggestions on the civil procedure and civil liabilities of unfair competition under the Internet environment.Under the context of eyeball economy,unfair competition on the Internet has a huge impact.The potential impact is immeasurable.Faced with the unfair competition on the Internet,legitimate operators cannot be effectively remedied without taking any relevant measures in the event of an emergency.As a result,self-help behavior becomes a supplementary remedy for the market subjects to safeguard their rights and interests when necessary.However,its scope is limited.An infringement will be constituted for any self-help behavior beyond the scope,and relevant liability for compensation will be sought for.However,to prevent self-help behavior from leading to the chaos of “answer violence with violence” and impeding fair competition,public remedy still occupies an absolute position among remedies for Internet unfair competition.With respect to the subjects who can institute public remedy,consumers,in addition to operators,can also seek remedy for unfair competition on the grounds that their interests are harmed.Therefore,consumer litigation and consumer testing should be introduced into THE ANTI-UNFAIR COMPETITION LAW.Internet unfair competition cases in the future will be highly related to technology.Thus,the people's court should set up a professional team of judges in technology,introduce a technical investigator system and coordinate the expert assistants in identifying technical facts,so as to explore and achieve a diversified system of technical identification.In order to effectively regulate unfair competition on the Internet,the people's court can boldly apply the injunction system according to the specifics of the cases on the basis of the “four-factor test”,raise damages and increase punitive damages.At the same time,the people's court should coordinate the relationship between injunctions and damages for different acts of unfair competition on the Internet,and choose various ways for assumption of civil liabilities such as elimination of influence and public statement according to the specific cases.The new ANTI-UNFAIR COMPETITION LAW,in the administrative responsibilities of Internet unfair competition,limited the scope of administrative penalties and increased the intensity of punishment,enriched the administrative law enforcement measures,optimized law enforcement procedures.It also gave the discretion to the supervision and inspection departments and added confidentiality obligations of the law enforcement officers.Therefore,we should implement the law of administrative responsibility to regulate Internet unfair competitions.