The Research On The Matters Of Network Interference Behaviors Under Competition Law

Chinese current anti-unfair competition law did not regulate unfair network interference behavior,but how to identify the network interference behavior as unfair competition led to the academic and judicial exploration.In the Tecent vs.Qihoo in the case of malicious labeling,the judge put forward a principle that perpetrators cannot interfere others only if this interference is necessary for public interests.However,the judge didn't clarify the standards of identifying network interference as unfair competition or the definition of public interests in the view of unfair competition law,nor did he raise the basis for the final amount of compensation by the defendant.In order to try to solve these problems,this thesis firstly summarizes the judgment factors of unfair network interference,states the defects of the principle that perpetrators cannot interfere others only if this interference is necessary for public interests,explores the factors that should be considered when weighing the various legal interests in the case and makes recommendations on how to determine and calculate the amount of damages caused by unfair network interference.The "interference behavior" is neutral in the network environment.In determining whether it constitutes "unfair interference",the primary criteria should be based on whether the behavior itself is positive and targeted.The key is to explore the true purpose of the behavior and the perpetrator's subjective intentions,not only to focus on malicious intentions.The public interest of competition law should be the unholy competitive order,which is ranked same with interests of consumers and business.When the perpetrator claims that he sacrifices other rights in order to protect some interest,the judge should determine whether the prioritized interest has security,fairness and other universal values,and demand the perpetrator proving that the behavior is necessary to achieve above purpose.After confirming the unfair network interference,the judge should seek comprehensive relief to the victim in order to pursue substantive fairness,considering both the scope of the infringement,period,the reasonable expenditure and other discretionary factors,and scientific calculation of expected benefits and goodwill losses.