Legal Reflection On Tencent V.Qihoo Unfair Competition Dispute

Since Anti-unfair Competition Law was formulated and implemented in China, it plays a significant role in standardizing the unfair competition's practices and maintaining the fair market's order. However, during over 20 years, tremendous revolutions have taken place in the domestic economic environment and market competition. Especially, the rising and prosperity in the Internet industry have brought more complicated changes for the market competition, which also reduces the effect of Anti-unfair Competition Law in regulating the unfair behaviors in this industry. More and more unjust market competition cases in the Internet industry draw the public's attention and become the heated issue in society. A couple of leading enterprises in the industry file lawsuits against each other, causing the disrupted competition within the industry. To regulate the unfair competition's behaviors in the Internet industry, and ensure ordered market competition, the paper will conduct the analysis of a typical Internet unfair competition disputes case- "360 QQ bodyguards" software unfair competition disputes case, and then put forward the solutions and suggestions on the unfair market competition in the Internet industry and related legal regulation, so as to provide some benefits for the further improvement of the market competition's order in the Internet field.Besides the instruction and epilogue, the treatise is divided into five sections:The first part is the introduction and analysis of the focal disputes to the unfair competition case of the “360 QQ Bodyguard” software, including the specific cause of action, main behavior facts and propositions of the prosecutor and defendant, trial process and trial results.Then is the summary and analysis of the focuses of dispute of the case, the text mainly analyzes there focuses of dispute,including how to identify the unfair competition's behaviors in the Internet industry,generally-acknowledged commercial morality's identification in the Internet industry and how to calculate the damage compensation of unfair competition.The second part is the analysis and discussion of the first disputed focus---unfair market competition's identification. This part first briefly shows the identifying ways of conventional unfair market competition's behaviors. Then, it classifies these behaviors in the Internet industry, namely the extension of conventional unfair market competition's behaviors in the Internet industry and the new unfair market competition's behaviors, and then utilizes several examples to clarify some special expressions of the unfair market competition's behaviors in the Internet market. By comparing the differences and similarities between the conventional unfair market competition's behaviors and the unfair market competition's behaviors in the Internet industry, the part concludes some key elements in identifying the unfair competition's behaviors in the Internet industry.The third part is the analysis and discussion of the second disputed focus---generally-acknowledged commercial morality's identification. This part mainly analyzes the identification principles of generally-acknowledged commercial morality in the current implementation of Anti-unfair Competition Law, introduces some particular methods of identifying the commercial morality in the judicial treatment of the unfair market competition's disputed cases within the Internet industry. Finally, it summarizes the ways and key points in identifying the commercial morality in the unfair Internet market competition.The fourth part is the analysis and discussion of the third disputed focus-- unfair competition's damage and compensation. This part first presents the basic principles and operating ways of calculating damage and compensation in the conventional unfair market competition's disputed cases, and then evaluates the Court's detailed implementation in calculating the damage and compensation in this case. Finally, the part elaborates on the elements that shall be taken into account in the calculation of damage and compensation in the unfair Internet market competition.Based on the analysis of the disputed focuses in the case, the fifth part comes up with corresponding suggestions on the legal regulation of the unfair Internet market competition, such as valuing the application of general terms in identifying whether or not the Internet competition's behaviors are accepted, enlarging the industry association rules' reference role in identifying generally-acknowledged commercial morality, and improving the ways of calculating the damage and compensation in the unfair Internet market competition.