Research On The Regulation Of Network Unfair Competition Behavior

In the background of network economy,the frequently acts of unfair competition have posed a serious threat to the Internet economic order.In the process of relying on the general provisions of Anti-Unfair Competition Law to regulate the unfair competition of the network,there are some distortions and deficiencies in the application of general provisions.At the same time,Anti Unfair Competition Law amendment bill draft enumerated the current network unfair competition behavior,and adopted the form of generalized rule to abstract this behavior,but there are still some deficiencies.In this paper,the author puts forward some Suggestions to improve the legal regulations by sorting out the types of unfair competition behaviors in the network.The whole text is divided into four parts besides the introduction:The first part is about the problem.In the Internet,the development of unfair competition caused by technological advancements has been developing rapidly,such as "baidu v.osun case","360 v.tencent case" and "baidu v.qihu case".According to the legal application of the general clause of anti unfair competition law,the above case involving many behaviour,such as mandatory advertising spots in the search results page,through the software technology to complete the mute,anticipated output behavior,whether these behaviors belong to unfair competition,whether the scope of application of the operator should be limited to "direct competition relationship" and how to structure the system should be worthy of consideration.The second part,the logic and the type of unfair competition of the network.The definition of network unfair competition behavior is not limited to the 11 types of unfair competition recognized by Anti-unfair Competition Law,after sorting out the disputes in judicial practice and reality,the author generalizes it into three categories:that is,confusion in the Internet,access interference and traffic hijacking,and compulsive bundling.In addition,in order to adapt to the development trend of network diversity of unfair competition,the society should use Anti-unfair Competition Law the provisions of article 2 as the general terms and conditions to strengthen the law about the future possible new network regulation of unfair competition.The third part is about Anti Unfair Competition Law regulation of Internet unfair competition.China's "anti-unfair competition law" in the field of Internet applicable situation of insufficient mainly reflects in: the cognizance of against ACTS of unfair competition,the general terms and conditions of the generalization of the judicature and the relief means the absence of the three aspects.Among them,the identification of unfair competition behavior on the Internet mainly involves the two main contents of whether the subject is suitable for the right and the uncertainty of the bottom of the pocket.The judicial generalization of general terms mainly refers to the transition dependence of general provisions in judicial practice.The lack of relief measures is mainly reflected in the deficiency of the former relief measures,the limitation of the scope of compensation,the elimination of the influence,the restoration of the reputation and other forms of liability.Although the anti-unfair competition law revision draft second draft review article 12 and article 23 involved network acts of unfair competition,generalization classification and eliminate the impact of responsibility form,but it remains to be a friendly progress.For example,the enumeration type of article 12 of the draft revision of the draft law on anti-unfair competition is not sufficient to reflect the reality of the Internet,article 23 the decision to eliminate the influence is not in the operator,but in the executive branch.The fourth part is to improve the anti-unfair competition law,with regulate the countermeasures of unfair competition.The author tries to put forward suggestions on perfecting the measures of unfair competition law in our country.First,under the premise of adhering to the legislative model of "summarizing and adding lists",we should sort out and refine the typical behaviors of unfair competition in the Internet,and enrich and develop a classification system of unfair competition.Second,by expanding the way of interpretation,we can break through the limitations of the subject of the Anti Unfair Competition Law.Third,establish the relief system before litigation as soon as possible to protect the legitimate rights and interests of the infringed.Fourth,break through the "filling principle" and introduce punitive compensation system.Fifth,we should clear the civil liability,such as the elimination of influence,the apology and the restoration of reputation,and enrich and improve the civil liability system of the law of unfairness.Sixth,re-examine the application scope of general terms and avoid further generalization in the application of judicial practice.