Research On The Judicial Application Of Malicious Incompatibility Clauses In The Anti-Unfair Competition Law

With the in-depth development of the Internet,new methods of competition have been spawned and the new following types of unfair competition are also intensifying,which has a major impact on the Internet.However,before the Anti-Unfair Competition Law was amended,there were no corresponding specific provisions,so the standard for the legitimacy of the Internet's new type of competition draw widespread discussion.The anti-unfair competition law amended in 2017 added Internet clauses and the purpose of which is to regulate new types of unfair competition on the Internet.The malicious incompatibility clause is an important part of the above content.This clause has been controversial since it first appeared in the revised draft until it was officially adopted.However,under the premise that it has been adopted and implemented at present,it is more critical to study how to apply it.This article analyzes the judicial application of malicious incompatibility clauses.The main body of the article includes the following.The first chapter describes the malicious incompatible clauses.By analyzing the origin of the malicious incompatibility clause,it is clear that the clause is based on relevant regulations and conventions,and at the same time,it is formulated based on the experience of previous judicial decisions and the development of the times.According to the overall content of the Internet Terms,its concept can be determined,and the analysis of the two concepts of malicious and incompatible are more conducive to promoting judicial application.Maliciousness is an important legal concept.Although its connotation is not clear,its extension is extremely rich and there are provisions concerning maliciousness in many legal norms.Incompatibility is a term for network technology,with multiple expressions and involving different fields.The second chapter analyzes the judicial application dilemma of malicious incompatible clauses starting with the main content of the legal provisions and analyzing it in conjunction with relevant cases.Because the law does not specify the manifestations and behaviors of malicious incompatibility,it leads to a certain degree of overlap with other contents of the Internet Terms,and at the same time the boundary between the application and the general terms is blurred.Incompatibility is the prerequisite for the judicial application of this clause,but the rules are not clearly applied,which makes it conflict with some provisions of the antitrust law.Maliciousness is the key to the judicial application of this clause,but it also lacks aunified standard for determination.There are both subjective and objective aspects of the actor's consideration,as well as business ethics in judicial practice.The third chapter explains the principle of malicious incompatible clauses starting from the theoretical level and judicial practice level and analyzing the necessity and feasibility of this clause.Theoretically necessary,it can make up for the lack of laws,enhance legal stability,reduce the application of general provisions and at the same time meet the needs of Internet development.The level of judicial practice also has its feasibility.The anti-unfair competition law has its own perfect system and a large number of new types of unfair competition cases on the Internet have been generated in judicial practice.Therefore,it is possible to promote the judicial application of the clauses by drawing on the experience of judicial judgment,the application and supplement legal clauses and applying legal interpretations.The forth chapter put forward suggestions on judicial application of malicious incompatible clauses.Based on the development prospects and practical needs of the Internet,the basic value orientation should be to give priority to maintaining the order of competition in the Internet market and pay attention to protecting the long-term rights and interests of consumers.Relevant legal provisions are effectively connected according to the specific case and application focus,adhering to the principle of priority of specific provisions,and effectively avoiding overlap or conflict.The Internet is an emerging field and its development model should be cautious and inclusive,and it should not intervene excessively.Therefore,incompatibility should follow the basic principle of incompatibility as the norm and compatibility as the exception,and limit its prohibition to only the dominant market operators at the same time it would pay attention to the application of some legal provisions of the antitrust law.The determination of maliciousness is decisive,and it is more reasonable and operable to consider the incompatible behavior characteristics and methods,and the objective effects caused as the consideration factors.Finally,the judicial application logic of the malicious incompatibility clause should integrate the key elements of incompatibility and maliciousness,effectively combine the two,select appropriate consideration factors to determine whether the incompatibility is malicious,and then determine the nature of the behavior on this basis.