Research On The Legal Regulation Of The Internet New Unfair Competition

With the rapid development of the Internet technology, the Internet market has been comparable with the traditional market. The Internet technology brings infinite opportunities and interests for the development of economy. Managers focus on pursuing interests whether in the traditional market or in the Internet market. However, unfair competition appears in the new virtual market. Because of the characteristics of Internet technology, support of the capital market and the unique Internet market business model, combined with lacking of related regulation rules, the Internet new unfair competition is frequent and complicated. With the help of the Internet media the traditional unfair competition in China has extended from the traditional market to the Internet market, and has evolved into Internet traditional unfair competition, such as using the Internet to false propaganda. The Internet new unfair competition has a series of new characteristics which are different from the traditional competition, such as technical characteristic, rapidly speeding, huge damage, less expenditure and so on. The Internet new unfair competition refers to using the Internet technology managers to violate the principle of honesty, good faith and public commercial moral, damage the others’ legal rights and interests, disturb the order of Internet market, under the unique Internet market business model, including improper software interference, the Internet traffic hijacking and improper shielding internet advertisement.A large number of relevant regulations have provided the solution and basis to regulate the Internet unfair competition. However, limited by the low-level legislation, Anti-Unfair Competition Law plays a role in regulating the Internet unfair competition.Anti-Unfair Competition Law which has been enacted for twenty years, combines the general terms with the specific enumeration. The Internet traditional unfair competition can be regulated by the enumerated chapters. However, from the point of the existing regulations the Internet new unfair competition can’t be included in the enumerated chapters, while it is prohibited by the general clause to safeguard the legal rights and interests of managers in the judicial practice.The general clause makes up the hysteresis of applying Anti-Unfair Competition Law. However, there are many problems which can’t be ignored at the time of applying the general clause. Firstly, the general clause has not made specific provision in Anti-Unfair Competition Law, and there are still some controversies about it. Secondly, restricted by the features of the general clause such as principle and abstract, there are different interpretation in the principle of honesty, good faith and public commercial moral, the existence of subjective difference do harm to the stability of the law. The damage of the stability can lose the predictability of the law, and destruct the real authority of the law, while managers do not trust the law any more. Influenced by the unique Internet market business model, managers who are no longer limited to pursuing interests, the competitive relationships are also no longer limited to managers who deal with the same or similar goods or services. Similarly, under the influence of the Internet technology and the lack of a injunction system, the consequences of the Internet new unfair competition may spread rapidly in a very short time, compensatory damages has been unable to make up for the actual damage of the other managers.Others’ experience can be lessons. As a typical representative of their legal systems, we can draw lessons from the advanced experience of the United States and Germany law regulation to consummate the related legal regulation system in China. When consummating Anti-Unfair Competition Law in order to safeguard the healthy development of the socialist market economy, encourage and protect fair market competition, prohibit unfair competition, safeguard the legal rights and interests of managers, we should make sure the legislative model conform to the related situations in China. To begin with, we should make the quality of the general clause more specific to minimizing the uncertainty in the process of applying the general clause. The next, the regulation scope of the law should be appropriately expanded, and the managers should be depended on their commercial business behavior, as long as managers use the unfair methods in their business transactions which can affect the competitive advantage and the interests of other competitors that can be considered a competitive relationship between these managers. Furthermore, we should analyze the categorization of the Internet new unfair competition and regulate the Internet new unfair competition by the enumerated chapters in order to improve judicial efficiency and ensure the stability of the law while applying it. Eventually, by introducing a injunction before litigation system and compulsory damages, we can avoid the damage of the Internet new unfair competition further expansion, while raising the costs of unfair competition and playing compulsory damages’ preventive and punitive function.