| With the continuous development of technology,digital economy has become an important engine for the development of a country and even the world economy.Some new unfair competition behaviors with obvious characteristics of the network era have gradually become a difficult problem in the current judicial practice.The unfair competition behavior of commercial data capture is a typical representative.This paper is divided into four chapters to discuss the regulation of unfair competition law in business data capture.First business data and data capture behavior.The concept of business data proposed in this paper should be collected by the operating enterprises of Internet software and platform.In the circulation of the Internet,it can be widely used in the business field and can be transformed into electronic data of economic value.In essence,commercial data capture is only a neutral network technology,and it does not constitute unfair competition as long as commercial data capture is implemented.Among the current theories of new personality right,new property right,intellectual property right,trade secret and new unfair competition behavior,the theory of new unfair competition behavior has a solid theoretical foundation and many supporters,which is in line with the value connotation of China’s anti unfair competition law.Second,the judicial status and Reflection on the regulation of unfair competition law of commercial data capture behavior,focusing on the transformation of the concept of illegality identification of unfair competition behavior in the new era.This paper analyzes the two comparative cases of "Sina Weibo v.Maimai software malicious capture" and "today’s headlines v.Sina Weibo restricted capture",reflects on the problems existing in the identification concept of unfair competition in the current judicial practice,and puts forward the transformation thinking of the identification concept in three aspects: from the premise of competitive relationship to the core of competitive behavior,from the thinking of rights and interests protection to behavior legitimacy From the standard of moral identification to the standard of efficiency.Third,the current legal regulation dilemma of business data capture behavior.When the current anti unfair competition law regulates the business data capture behavior,there are still the following problems: first,the anti unfair competition law lacks the exclusive regulation provisions for the business data capture unfair competition behavior,while the "General Provisions" are vague,which has limitations in regulating the business data capture unfair competition behavior.Second,the relevant stop loss and damage compensation liability system is not perfect.At present,the applicability of the pre litigation injunction system in the anti unfair competition law is not strong,which leads to the further expansion of the damage of operators,and the supporting damage compensation system is not perfect,which can not make up for the losses suffered by operators.Third,the relevant administrative supervision system is not perfect.As the main force of law enforcement,the market supervision department lacks Internet related professional knowledge,and the professional industry and information technology department does not have sufficient legal authorization;In addition,the legal provisions on the rights and responsibilities of law enforcement subjects are unclear,resulting in the confusion of law enforcement.Fourth,put forward improvement suggestions for the above problems.The first is to improve the legislation,clarify the constituent elements of commercial data capture unfair competition,and add specific enumeration clauses.Secondly,establish a practical pre litigation injunction system and damage compensation liability mechanism.Introduce the pre litigation injunction system in unfair competition cases,clarify the applicable rules,build a perfect damage compensation liability system,refine business data,capture the reference factors of unfair competition damage compensation,and establish multi-level damage compensation identification standards.Finally,improve the supporting administrative supervision system.Clarify the regulatory authority of the industry and information technology department on unfair competition involving data,and establish a joint regulatory system between the industry and information technology department and the municipal supervision department;Strengthen the professional level and law enforcement ability of the law enforcement team;Optimize the administrative supervision system in combination with the characteristics and needs of new unfair competition in the Internet field. |
