| At present,there is no direct legal basis for determining the legality of shielding video advertising,and article 12 of the newly amended Anti-Unfair Competition Law does not deal with this issue very well.In theoretical circles and judicial practice,there is a great dispute about whether shielding video advertising behavior violates the law of anti-unfair competition.In judicial practice,courts generally determine the legality of shielding video advertising behavior with general provisions,and most courts protect the interests of video website operators too much,and ignore the interests of consumers and competitors.The behavior of these courts violate the legal principle of competition law.In addition,in dealing with cases of unfair competition in the field of Internet,our courts have created the principle of " non-public welfare necessary without interference ",which has become an important follow for courts to deal with cases of unfair competition in the network since it was put forward.Many courts use this principle to assist in determining the act of shielding video advertising as an act of unfair competition.However,this principle is that the court in order to deal with the Internet in the field of unfair competition in the judicial creation,and there is no basis.For the application of this principle,the theoretical circle is even more mixed.In this context,the author hopes that through the current case study,as well as the German and American experience of the reference,give some suggestions for courts' correct determination of the legitimacy of shielding video advertising behavior.The first section of the first chapter of this paper mainly introduces the current situation of judicial practice of shielding video advertising behavior and the main controversial issues in such cases at present.The second section of the first chapter to the fourth chapter of this paper will compare the cases of the "YouTube v.Shuo Wen Company","Tencent v.World Star Hui Company " and "Tencent v.World Star Hui Company " second instance.Through the comparative study of the above case to explore the controversial issues in this paper.In judicial practice,when determining whether the block video advertising behavior is legitimate or not,there are the following controversies: first,if the identification of the shielding video advertising behavior needs to be based on the existence of a competitive relationship as a prerequisite? What is the premise of applying the article 2 of the Anti-Unfair Competition Law to determine the nature of competitive conduct? What elements need to be met in the application of this provision to determine that the Act is an improper act? Is it possible to apply the article 2 of the Anti-Unfair Competition Law to determine the legitimacy of shielding video advertising behavior? After the entry into force of the new Anti-Unfair Competition Law the legitimacy of shielding video advertising behavior should apply the article 2 to determine,or the Internet special article to determine? Is shielding video advertising behavior violate the Anti-Unfair Competition Act? Does shielding video advertising behavior apply to "non-public welfare necessary without interference principle" ? Should the business model of "free Video + advertising" be protected by the Anti-Unfair Competition Act? Chapter 2 to forth will mainly focus on these several controversial issues.In the fourth chapter,the author wants to introduce the theory of benefit measurement into the identification of shielding video advertising behavior,in order to explore whether the behavior is legal.In this paper,theoretical analysis,normative analysis,case analysis and comparative analysis are adopted to identify the legitimacy of shielding video advertising behavior.Through the collection and analysis of various existing literatures,the author has a preliminary understanding of the current research situation of such cases.Through combing and studying the existing laws and regulations against unfair competition,let the author have a clearer understanding of the application of law in the old and new alternation of the Anti-Unfair Competition Law.Through the collation of all existing blocked video advertising cases,we can sum up the views of the Court and the basis of adjudication,so that the author knows more thoroughly about the current situation of justice.The second chapter and the fourth chapter use the comparative analysis method,through comparing the judicial practice of the German and the United States in the shielding video advertising behavior with China to found the differences,and to learn the foreign advanced ideas.Through the study of the existing theory and the research of judicial jurisprudence,the author has some views on the controversial issues in shielding video advertising cases,and the author thinks that under the current background of the Internet,there is no practical significance to regard the existence of competitive relations as the premise of applying Anti-Unfair Competition Law,and the legitimacy of the behavior should be determined directly.Article 2 of the Anti-Unfair Competition Act should be a limited general provision,that is,if the AntiUnfair Competition Act does not specify the act in question,the article 2 of the Anti-Unfair Competition Act shall be applied to determine whether the act is justified or not.However,in order to avoid excessive judicial intervention in free competition in the market,it is necessary to meet five conditions at the same time when applying the article 2 finding that the action is improper.If shielding video advertising behavior occurs before the entry into force of the new Anti-Unfair Competition Law,it is undoubtedly possible to apply the article 2 to determine whether the act is justified.But it is debatable whether the Internet clause needs to be applied after the new Anti-Unfair Competition Act adds an internet clause.The author thinks that shielding video advertising behavior does not belong to the enumeration behavior in the Internet Special article,and the bottom clause is too vague,therefore,it is necessary to return to the general clause to determine the legitimacy of the act.Through the study of the five elements that should be satisfied by the application of the article 2,the author thinks that it cannot be found that the blocking video advertising behavior is improper.For the principle of "non-public welfare necessary without interference" created in judicial practice,the author thinks that this principle presupposes the impropriety of the act of litigation,and cannot be applied to measure the legitimacy of shielding video advertising behavior.For the theory of interest measurement advocated by theorists,the author thinks that this theory is helpful for the court to judge the legitimacy of the act.Through the reference of German and American experience,it can be found that Germany and the United States in determining the nature of shielding advertising behavior will take more account of the balance between the original defendant competition,consumer interests and the innovative needs of technology,and more in line with the competitive nature of the market.And China's new Anti-Unfair Competition Law through the redefinition of unfair competition behavior,formed a social public interest,operator interests and consumer interests "ternary superposition" of the interests of the protection pattern.Therefore,in this context,when determining the legitimacy of shielding video advertising behavior,we should abandon the original general Tort identification model,and use the multi-interest measurement model of comprehensive consideration of multiple interests. |
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