Research On The Anti-unfair Competition Law Of Data Fetching Behavior

With the in-depth development of digital economy,new types of unfair competition with obvious characteristics of the network era are emerging,and data capture unfair competition is one of the typical representatives.When defining the nature of data,we should first distinguish between the concepts of "data" and "information".In essence,data only refers to the bit form which is circulated on computers and networks,based on binary system and combined with 0 and 1.It realizes the transmission function of information with the support of Internet code technology.When incorporating data into the scope of legal regulation,we need to pay attention to its technical dependence and non-exclusive characteristics,and analyze the way enterprises use data to realize economic value,so as to clarify the current situation that traditional civil law system is difficult to solve the problem of data governance.Data grabbing is essentially a process of obtaining data from structured data.Not all data capture actions are illegal,so when classifying them,in addition to classifying according to the data type,they are also classified into illegal data capture actions and legal data capture actions according to the characteristics of the behavior.Then,in the process of qualitative analysis,compared with the new personality right theory,the new property right theory,the intellectual property right theory and the trade secret theory,the new unfair competition theory is more suitable.Therefore,the illegal data capture behavior can be called the unfair data capture competition behavior.When identifying the illegality of data-grabbing unfair competition,due to the lack of judicial understanding of the characteristics and positioning of anti-unfair competition law,some judicial personnel are shackled by power generalization thinking and moral generalization thinking when making illegal identification according to commercial ethics standards.However,the promulgation of the new Anti-unfair Competition Law clarifies the characteristics and orientation of the Behavior Law.The positioning of competition law establishes the triple value pursuit system of competition order,the interests of operators and consumers.It requires that the concept of emphasizing behavior characteristics and pursuing efficiency should be established when the illegality of unfair competition is recognized.There are several problems in the regulation of data grabbing unfair competition.First,the establishment of judicial rules is unreasonable,because the concept has not yet been changed,leading to the formation of the judicial thinking of static interest protection in the trial.There are defects in the rules of "abide by industry practices" and "prohibit hitchhiking" established for data capture unfair competition.Second,the current provisionsare not operational enough.Although the new Anti-Unfair Competition Law amends the general provisions and adds "Internet Special Article" to deal with Internet unfair competition,it does not provide a precise basis for the regulation of data-grabbing unfair competition.Third,there is a lack of supporting regulatory system.As the only clear subject of administrative enforcement of anti-unfair competition law,market regulatory authorities can not well deal with the unfair competition behavior of data capture with strong specialty.Because of the network technology characteristics of data,the unfair competition behavior of data capture has the characteristics of concealment and immeasurable damage,and its relief afterwards.It's better to strengthen supervision beforehand,but the Anti-unfair Competition Law lacks corresponding prevention mechanism.In view of the above problems,first of all,we should establish the rule of comprehensive interests measurement in judicial practice,which is determined by the characteristics of interests measurement in anti-unfair competition law,and this rule will make the result of the judgment more scientific and reasonable.However,in order to ensure judicial efficiency and legal stability,we need to further improve the existing provisions.Therefore,the second is to improve the "Internet Special Article",in order to prevent its abuse in the regulation of data-grabbing unfair competition,it is necessary to make clear that data-grabbing is not correct.On the basis of the constituent elements of competition behavior,the type clause of data-grabbing unfair competition behavior is added.Finally,we should strengthen the construction of the supporting regulatory system.After defining the regulatory authority of the ICT department,the ICT department and the industry and commerce department should jointly enforce the law on data grabbing unfair competition.At the same time,we should realize the construction of the prevention mechanism of data grabbing unfair competition by controlling the code setting in advance.