Analysis Of The Anti-Unfair Competition Law Of Tianmao Company V.Zaixin Company And Zaihe Company

Unfair competition in the Internet field is the product of the Internet era.Its emergence and rapid evolution have challenged China's Anti-Unfair Competition Law.In terms of legislation,the legal basis for judging the illegality of the Internet competition behavior has made a major breakthrough in the newly revised Anti-Unfair Competition Law in 2017,that is,for the first time,"Internet Special Article" has been incorporated into the basis for identifying unfair competition behavior,and "Summarize + List + Circle" has been used to identify Internet unfair competition behavior,because the enumeration clause has natural limitations and is applicable.General clauses play an important role in judging the nature of Internet competition which is not included in the law today and will appear in the future.Judicially,the path of judging the illegality of Internet competition behavior is different in different countries,different regions,even the same country and different regions.This article will base on the essence of competition,combine the particularity of the Internet field,take the case of Tianmao company suing the Zaixin company and the Zaihe company for example,synthesize various factors of illegality,and use the interests to measure the illegality.The way is to identify the nature of Internet competition behavior in this case.In addition to the introduction,this paper is divided into four parts.The first part introduces the basic situation of the case and summarizes the controversial focus.The plaintiff Tianmao Company complained that the defendants used the plaintiff's website to induce the clients who belonged to the plaintiff to buy goods on the "Bang 5 Mai" page,resulting in the loss of the plaintiff's customer flow.The defendants' behavior had the nature of "hitchhiking",violated the commercial ethics and the principle of honesty and credit,and infringed the plaintiff's interests,asked the court to judge the defendants to stop unfair competition.A second trail court finally found that the two defendants' behavior constituted unfair competition.At the same time,it concludes that the focus of controversy in this case is the legal basis and path of judging the illegality of Internet competition behavior represented by the competition in this case.The second part discusses the first controversial focus of the case,namely the legal basis for judging the illegality of Internet competition behavior.Firstly,the basic tenet of Article 12 of the newly revised Anti-Unfair Competition Law is analyzed.Secondly,the article gives a legal interpretation of the clause in terms of its advantages and disadvantages,including typological clauses,general provisions and moral ambiguity.Finally,it analyses the application limitation of the clause in terms of competition thinking and the difference of competition damage.The third part discusses the second controversial focus of this case,that is,the path of judging the illegality of Internet competition behavior.Through the comparison of judicial cases between China and foreign countries,this paper summarizes the two judgment paths of rights and interests protection mode and behavior legitimacy mode to confirm the legitimacy of Internet competition behavior,and focuses on the analysis of five considerations for judging the illegality of Internet competition behavior.,including respect for industry norms,the impact on the business model and survival of affected operators,the legitimacy of the actor's profit,the impact on consumer choice,the impact on market competition mechanism.The fourth part analyses the case and puts forward conclusions.Using the method of interest measurement,this paper makes a comprehensive analysis of the competitive behavior of the Zaixin company and Zaihe company's "Bang 5 Tao" shopping assistant in the case from five aspects.Finally,it comes to the conclusion that the defendants' interests are more worthy of legal protection.The Internet competition behavior does not violate the provisions of the Anti-Unfair Competition Law of our country,and puts forward opinions inconsistent with the results of the judgment.