On The Identification Of Unfair Software Interference Behavior Under Modern Anti-Unfair Competition Law

Since the Internet technology entered the Chinese market,computer software,as a basic channel for users to obtain Internet information services,has been receiving special attention from operators.Among various means of competition,unfair software interference behavior is the most prominent and serious.Prior to the enactment of Article 12(about new types of unfair competition in the Internet field)of the 2017 Anti-Unfair Competition Law of the People’s Republic of China,the vast majority of unfair competition cases concerning software interference are based on the Article 2("General Provisions")of the 1993 Anti-Unfair Competition Law.At first,in order to solve the abstraction and ambiguity of the application of the "General Terms",the courts usually judged the legitimacy of the software interference behavior based on the "good faith principle and recognized business ethics" standard.Gradually,the courts started to consider the competitive characteristics of the Internet industry,and creatively developed "Non-Interference Unless for Public Interest" standard.However,in recent years,as the network effect of the Internet industry has become more and more apparent,the development of China’s Internet industry has entered a new stage.Operators compete to chase Internet users’ attention,continue to seize resources across borders,and innovate in technology and business models to meet the personalized needs of users.Under such a new background,the two identification standards mentioned above have some limitations.The recognized business ethics is difficult to form in the short period of time when the Internet technology changes."Non-Interference Unless for Public Interest" standard is based on the protection of public interest and requires Internet operators to not interfere with each other,which is contrary to free competition and hinders industry innovation.The right infringement identification model shows that there is a subconscious protection tendency for the existing interests in judicial practice,which means that the judgment of the legitimacy of the software interference behavior does not fundamentally follow the anti-unfair competition law.In order to correct the identification deviations of unfair software interference behavior,this paper proposes that we should first return to the modern anti-unfair competition law,change the identification model with the guidance of the attributes of the competition law,and pay attention to the consideration of consumer factors and weaken the role of competitive relationship judgment and maintain judicial self-restraint to software interference involving innovative factors.Specifically,the behavioral regulation mode should be adopted for the identification of unfair software interference behaviors—the subjective requirements should be limited to deliberate,the objective requirements should be based on the “undistorted competition order”standard,and the damage assessment should measure various interests.