A Study On The Application Problems Of The General Clause Of Anti-Unfair Competition Law In The Internet Field

The continuous development of science and technology brings new opportunities for the development of Internet economy.The constant updating of technologies,products and business models in the field of Internet is impacting the traditional economic model and changing the pattern of market competition.At the same time,competition in the Internet field is getting fiercer.One hand,some operators make use of Internet technology to increase their own competitive advantages,hoping to be in a dominant position in the market competition.On the other hand,some operators use Internet technology to carry out unfair competition behavior,resulting in chaos of competition among operators.Limited by the legislative conditions at that time,the anti-unfair competition law(hereinafter referred to as the old law)enacted by lawmakers in 1993 contained no specific provisions on regulating unfair competition in the Internet sector.For a long time,for unfair competition cases in the field of Internet,the judges in practice basically apply article 2 of the old law,that is,the general clause.In November 2017,the anti-unfair competition law(hereinafter referred to as the new law)was amended and passed,which will come into force on January1,2018.In 2019,the law was amended again,but not involving the general clause.The new law specifically adds article 12 to regulate unfair competition in the Internet field.Unfortunately,article 12 has limited examples and too few elements.At the same time,the general clause has been significantly revised,emphasizing the nature of competition law and redefining unfair competition practices.The recognition paradigm of unfair competition behavior changes from the right protection paradigm in the old law period to the behavior regulation paradigm in the new law period.In practice,the judges are gradually applying the new law to identify unfair competition in the Internet field.However,there are some problems in the application of the general clause of the old law and the new law.In addition,the existing problems in the old law period still remain in the new law period.In order to apply the general clause of the new law better,this paper will study the application problems of the general clause of the anti-unfair competition law in the Internet field.This paper will study the application problems of the general clause of the anti-unfair competition law in the Internet field from five aspects:Part One: preface.This part will analyze the research background,literature review,research purpose and significance,which will guide the direction of the thesis on a whole.Part Two: the analysis of the applicable paradigm of general clause in the network unfair competition cases.Firstly,this part introduces the network unfair competition cases from perspectives of the types and characteristics of the network unfair competition cases in the old law period.Secondly,the concept of general clause of anti-unfair competition lawis analyzed.Finally,through the analysis of relevant cases,the network applicable paradigms of general clause in the internet field in the old law period and the new law period are respectively summarized.Part Three: the analysis of the application problems of general clause of anti-unfair competition law in the Internet field.It is pointed out that the paradigm of rights protection in the old law period has the problems of abuse,and the behavior of unfair competition has the problems of pan-moralization and the imbalance of interest protection.The application relationship between the general clause and article 12 is confused,and the rights protection paradigm is also applied and standards are still confused in the determination of unfair competition behavior of the behavior regulation paradigm in the new law period.Part Four: the application recommendations of general clause of anti-unfair competition law in the Internet field.This part mainly aims at the existing problems of the third part to put forward specific suggestions.First of all,the relationship between general clause and article 12 should be clarified.Article 12 should be applied first,and general clause should be directly applied to regulate the unfair competition behavior in the Internet field when it is necessary.The network applicable paradigms of general clause in the internet field should uphold a dynamic view of competition and a neutral view of competitive damage to protect the competition order in competition,the legitimate rights and interests of operators and consumers.When different interests conflict with each other,the method of interest measurement should be applied to identify the unfair competition behavior in the Internet field.Part Five: conclusion.