Research On Compensation Mechanism Of Unfair Competition On The Internet In China

In recent years,Internet technology has become more mature,and the integration of the market economy and the Internet has become deeper and deeper.The Internet-based management method makes transaction activities more convenient,whether it is consumers or operators,who have benefited a lot from it.With the increasingly fierce market competition,in order to gain more benefits,illegal actors use the Internet as a platform to implement unfair competition,defame and suppress other Internet operators,and seriously disrupt the market order.Since the Internet unfair competition behavior is very different from the traditional unfair competition behavior,there are many difficulties in handling cases of Internet unfair competition behavior,especially the issue of damage compensation is the most prominent.Although my country's Anti-Unfair Competition Law stipulates the issue of damage compensation,in practice it is not strong in operation and is not conducive to giving adequate protection to the interests of the infringed.Based on the essential characteristics of Internet unfair competition behavior,the author reveals the existing problems through practical cases,and draws on previous excellent research experience and extraterritorial legal system to make suggestions on the issue of damage compensation for Internet unfair competition behavior.This article is mainly composed of the following four parts:The first part is an overview of the unfair competition behavior on the Internet.Its content is based on the unfair competition behavior on the Internet technology.It is characterized by strong technicality,difficulty in obtaining evidence,huge losses in a short time,and strong concealment;typical Internet is not The legitimate competition behaviors include traffic hijacking behavior,unauthorized shielding advertisement behavior,domain name unfair competition behavior,etc.;the internet unfair competition behavior is different from the traditional unfair competition behavior,and both are illegal and infringing.,Diversity,but relatively speaking,it is difficult for the courts of jurisdiction for unfair competition on the Internet to determine,the cost of violations is low,it is not premised on the existence of direct competition,and it is difficult to determine the amount of compensation.The second part uses the case analysis method to analyze and summarize 200 cases of damages for Internet unfair competition,and finds that the current amount of compensation for Internet unfair competition cases in China is low,concentrated in the range of 50,000 to 550,000.The method of determining the amount of damages is mainly discretionary compensation,and only a small number of judges adopt the statutory method of compensation.Taken together,China's Internet unfair competition compensation mechanism has the following shortcomings:First,the calculation method cannot meet the practical needs,and separately elaborated from the perspective of various types of Internet unfair competition behavior,second,the scope of compensation is unclear,and third,discretion The standard of compensation is not clear.The fourth is that the available benefits and the loss of goodwill are not included in the scope of compensation.The reasons for this situation are the complexity of the Internet ecology,the abstraction of Internet business activities,and the loss of results that are difficult to quantify.The third part uses a comparative analysis method to investigate the legal system of unfair competition on the Internet in Taiwan,Germany,Japan and other countries or regions.From the scope of damages for unfair competition on the Internet,the factors for consideration and the amount of compensation The calculation method is studied in three aspects.After research and summary,it is found that Germany and Japan include the available benefits and the loss of goodwill into the scope of compensation.Taiwan adopts comprehensive and thorough discretionary factors.Taiwan and Japan mainly stipulate infringement profits and actual losses.Calculation method.It is hoped that the Chinese law will take its essence and remove its dross to be more perfect.The fourth part puts forward suggestions to improve the compensation mechanism for China's Internet unfair competition:1.Adjust the scope of compensation,in addition to the actual losses of the victim,the benefits obtained by the infringer,and reasonable expenses,the scope of damages should also include available benefits and damage to goodwill.2.The presumption calculation method of the actual loss and the profit of infringement is parallel.3.Adjust the calculation method of actual losses:From the perspective of traffic hijacking and other specific acts of unfair competition on the Internet,the calculation method of actual losses is described.At the same time,suggestions for calculation methods of actual losses applicable to general cases are also proposed.4.Adjust the calculation method of infringement profit,and put forward two ideas:quantitative analysis method and qualitative analysis method.5.It is clear that reasonable expenses should include investigation and evidence collection fees,evaluation fees,appraisal fees and audit fees,transportation fees,room and board fees,lawyer fees,security fees,justice fees,etc.6.adjust the calculation method of indirect losses:the loss of available benefits can be calculated by the market share method;the calculation of goodwill loss first considers the evaluation method,and secondly considers the expenses in order to eliminate negative effects.7.The consideration factors for clearly determining the compensation method:the scope of infringement and the market share of the infringer,the duration of the infringement,and the subjective maliciousness of the infringer,the judge can adjust the discretionary factors according to the actual situation.