Study On Judicial Application Of Malicious Incompatibility Clause

Internet market flow away with the huge economic interests,market operators often take incompatible behavior to gain an advantage,for flow,enhance the user viscosity,justification and legitimacy of incompatible behavior and not just a wall,when the offender "malicious" is subjective,the incompatible behavior will evolve into ACTS of unfair competition.For this kind of unfair competition behavior,in the past judicial practice,the court usually uses the "general provisions" in the Anti-Unfair Competition Law of 1993 and relevant industry practices to make judgments.However,the number of incompatible cases is also increasing,and the malicious incompatible behaviors are characterized by diversified forms,hidden behaviors that are difficult to define,complicated interests involved and difficult to determine the legitimacy.General terms and industry practices have been difficult to cope with the changing of the new unfair competition.As a result,China amended its Anti-Unfair Competition Law in 2017,adding a special article on the Internet.Article "the Internet designed" to the malicious incompatible behavior of typical developed special terms,at the same time,and to "out" for other cannot apply "malicious incompatible clause" a new type of improper behavior out regulation,this makes up the blank of the applicable law to a great extent,limits the generalization of "general terms and conditions".But from the results of the repair method,add the article "the Internet designed in the text" logically there are still some confusion: one is the lack of progressive relationship between internal payment terms,make originally should belong to the parallel relationship hijacked "flow","Internet interference","malicious not compatible" on the connotation and denotation appear unreasonable cross,at the same time,the scope of application is lack of necessary out terms As a result,malicious incompatibility clauses lack uniform applicable standards in judicial practice.Secondly,the "bad faith" in bad faith incompatibility belongs to value judgment,and it is not disjointed with industry practices such as honesty and credit,business ethics and so on,so that it is difficult to grasp the applicable limit of "general terms".Thirdly,the order and limit of application of relevant provisions and other legal norms are not clearly defined,especially the conflict between malicious incompatible provisions and other legal norms,resulting in different judgments of the same case or similar cases.In view of this,this paper clarify the concept of "malicious" and "not compatible",and combined with the essence of incompatible behavior characteristics,case study related incompatible behavior of judicial judgment,malicious in "anti-unfair competition law" is not compatible with the terms of the judicial application is analyzed,in order to malicious incompatible clause in the Internet platform competition play a greater role specification.This paper will be analyzed from the following aspects:The first part starts from the definition of malicious incompatible behavior,the analysis of malicious incompatible clauses and the necessity and feasibility of the existence of malicious incompatible clauses,and gives a comprehensive overview of the basic theory of malicious incompatible behavior,which is the research object of this paper.The second part analyzes the status quo and characteristics of judicial adjudication of malicious incompatible behaviors by listing 6 cases of "Beijing 3721 v.Baidu","Sogou v.Qihu 360" and 3Q War,and summarizes the judicial adjudication mode of "personal benefit relief" and "balance of interests".And the disadvantages of the two modes are further analyzed.The third part is on the basis of the second part summarizes the malicious incompatible provisions applicable dilemma is rooted in behavior is not compatible with compound and the multiplicity of rules and regulations,and due to a lack of unified rules identified in the malicious incompatible element which is not compatible with the referee according to escape the general terms and judicial application.The fourth part from the perfect malicious incompatible behavior standards,specific malicious incompatible provisions applicable law technical route and perfect the trial model of malicious incompatible behavior sets about malicious optimization path is not compatible with the terms of the judicial application,in order to extend "malicious not compatible" judicial application stage,play its actual role maintaining market competition order.