Research On The Judicial Determination Of New Network Unfair Competition Behavior

The main articles involved in the judicial determination of the new network unfair competition act are Article 12(Internet article)and Article 2 of the Anti-Unfair Competition Law.The statistical analysis of the judicial cases since the implementation of Article 12 shows that there are some problems in the current judicial determination,such as excessive preference to the private interests of operators,complicated application of competition and excessive application of the backstop clause of the Internet special article.The main causes of the problem are as follows:First,the judicial practice is influenced by the thinking of the law of rights to enrich the right of competitive interests when determining unfair competition.At the same time,the judicial practice fails to recognize the goal of protecting multiple interests in the law of anti-unfair competition and the dynamic nature of competition,which leads to the absence of the essence of interest measurement;Second,the judicial practice has not fully realized that under the Internet economy,the broad interpretation of competition relationship has changed its role from the prerequisite of behavior determination to the requirement of litigation qualification proof and reference requirement of damage determination.Third,the judicial applicability of the Internet article is insufficient,and there are defects such as inaccurate generalization of behavioral connotation,imprecise typed cognitive model and lax and strict provisions.In view of the above analysis,the judicial determination of the new network unfair competition behavior should be improved from the following aspects.First of all,the type of Internet clauses to adopt a purposive restriction interpretation;Secondly,optimize the constitution and scope of application of the Internet special guarantee clause;Thirdly,give play to the new role of competition in the trial of litigation qualification and damage identification;Finally,the author adopts the judgment standard of multiple interest measurement,synthesizes the influence of behavior on the interests of operators,the interests of consumers and the order of market competition,and promotes the transformation of the judgment of legitimacy from the moral standard to the evaluation of the effect of market competition.