Judgment On Justification Of Software Interference

Software interference can be attributed to the behavior type of destructing others’ competitive edge, which is a kind of new unfair competition only stipulated by general clause of the Anti-unfair Competition Law. The key point of the regulation is the judgment on justification of interference acts. In view of the principle and uncertainties of general clause, as well as complexity and variety of new Internet unfair competition, there are some difficulties in judicial judgment so that local courts are all trying to explain the general clause to properly apply it. The rule of “Non-Interference Unless for Public Interest”(hereinafter referred to as the “Rules”) has been created under this background, which was the summary of judges’ judicial trial experience and the method of general clause applying into the field of Internet. The Rule also provided a solution to the judgment on whether acts are justified or not. However, lots of controversy were sparked after proposal of the Rule.It is necessary to analysis the justification of software interference acts and take the Rule as a core. To further verify the respective elements of the Rule, the thesis will clear up the different types of software interference, explore the legal principles or legal basis of the Rule, and compare the differences regarding the justification of interference acts between extraterritorial and interfering areas. The study of the Rule itself can be used to determine a correct direction and eliminate some errors.The thesis consists three parts:Part I represents the problems of judgment on justification of software interference. Firstly, the software interference needs to be defined and categorized, which can be subdivided into five main types: software conflict, software modification, advertisement block, software rating and attention interception. Secondly, the Rule includes three elements: “interference forbidden”, “public interest exception” and “necessary interference”. Thirdly, the debate of the Rule concentrates on the above three parts respectively: whether the interference must be directly forbade and how to evaluate the unjustified acts; whether the public could be the exception of unjustified acts and how to balance the conflicted interests; how to understand the necessity of the acts and how to evaluate it.Part II discusses the above three elements in detail. For the “interference forbidden”, the first thing is to define the word “interference”. Unlike the definition under tort law, anti-unfair competition law especially protects the unjustified interfered interest, which has been confirmed by either extraterritorial or interfering areas. The technical neutrality of the interference reinforces this position. Secondly, for the judgment factors of unjustified interference, extraterritorial area mainly focuses on honest business practices, enacted law reference, subjective purpose and legal economics. While the domestic factor is the recognized business ethics and our judicial judgment always tries to reflect the extraterritorial factors. Therefore, this element can be clarified into that generally the Internet products or services shall not interfere with each other in unjustified ways when probably damaging the competitors, customers and the order of the competition.For the “public interest exception”, the first thing is to restrict the definition of the “public interest” under Internet anti-unfair competition law, which means the network users and other market participants. Secondly, the public interest could be an exception because the balance between conflicted interests meets the requirements of the rule of reason and special proportion principle. However, some clarification still needs to be pointed out that when starting from protecting public interest and probably achieving the purpose, competitor could interfere with the operation of others’ Internet products or services without network users’ knowledge and positive choose on condition that the damages caused by interference can be offset by public interest.For the “necessary interference”, the element conforms to the requirements of the minimum principle, but still needs to be changed into that the intruder shall guarantee and identify that the interference is necessary and reasonable when acts occurring and no alternatives that cause obviously smaller damages.The whole structure of the Rule is rational and complies with the general requirements of rule of reason and proportion principle. After the clarification towards the three elements, we can judge the justification of the software interference acts successfully.Part III is the case retracing and legal proposals. Through re-comment on the three typical cases using the clarified Rule, this paper proposes practical judicial steps and modification suggestions regarding general clause of our Anti-competition Law.