The Identification Of The “Non Legitimacy” To Software Conflict And Interference Behavior

In recent years, with the rapid development of the Internet, the Internet in the field of unfair competition disputes frequently, and disputes by software conflict and interference between the Internet companies triggeres an important type. The litigation between Tencent and Qihoo,the disputes between Qihoo and Baidu, and the lawsuist between Baidu and Sogou all have confirmed it.This kind of cases emerge in endlessly, makes Anti-Unfair Competition Law whish is to maintain the order of competition encounterers difficulties.Specifically, the "Anti-Unfair Competition Law" Chapter second listes 11 kinds of unfair competition does not reflect the network environment on the impact of acts of unfair competition, the traditional method of direct decidition of "unfair competition" fails.For this reason, the article 2 of the Anti-Unfair Competition Law's principle rules of business ethics standards have appeared in trouble.At the same time, the network industry's preference for free competition, making the decide of” no justification” face to balance the interests of operator, consumer, economic efficiency.Difficulties of traditional Anti-Unfair Competition Law indicates that there were deficiencies in its system construction, this concept has become the starting point of this article.In addition to the article introduction, conclusion, mainly by the following four parts:The first part: the general theory of the software conflict and interference behavior. First of all, introduce the connotation and extension of the behavior, and analyzes its particularity. Software conflict and interference behavior in a variety of forms, mainly concludes blocking software operation, shielding network advertising, modify the product or service,etc. Second, software conflict and interference behavior is difficult to effectively regulated, it destroyed the market economic order, undermine the consumer welfare, and the regulation of the bottleneck lies in its "legitimacy" is difficult, thus put forward the necessity of the study of it.The second part: the plight of identifying software conflict and interference behavior”no justification”. First, points out that because of the Intellectual Property Law and Anti-Unfair Competition Law are difficult to effectively apply, lack of recognition of the substantive law of unfair competition based on Internet. Second, analyzed in detail that under the influence of network competition, why business ethics standard that the "Anti-Unfair Competition Law" article 2 contains is difficult to adapt to the reality demand.The third part:the transformation of the value orientation in identifying ”no justification” in software conflict and interference behavior. Points out that under the background of network economy, the market values shift from the protection of operator to protect the market economic order.Based on this,the article puts forward that the identifying of ”no justification” in software conflict and interference behavior needs to be on the premise of protect competition mechanism.The fourth part: the basic ideas of identifying ”no justification” in software conflict and interference behavior. Pointed out that whether to destroy the competition mechanism is the judgment standard of the legitimacy.Through the analysis of the competition mechanism's operation and characteristics in the Internet environment, the competitive mechanism standard is specific to standard of the performance in competition. The standard of performance competition in software conflict and interference behavior, follow the following logic: fictitious results directly forms the unfair competition.Evaluation of the competition outside the fictional performance behavior is based on whether it damages the operators' and consumers', the social public's "interest" enjoyed from not distort competition.