Study On The Legal Regulation Of Internet Unfair Competition From The Perspective Of Incentive Innovation

The rapid development of internet economy,intensified the internet competition with more and more unfair competition cases,which has affected the development of internet market economy,calls for legal regulation and guidance.There is a great difference between the the internet market and the traditional market,the platform competition,the market competition relationship is more complex.It is still a problem to regulate unfair competition in the internet market since its relationships are complicated involving economy,network technology,law and so on.Therefore,it is extremely difficult to make a correct judgment on whether a competitive behavior in the internet market constitutes an unfair competition behavior and regulate it.Being an innovative market,the internet market depends on network technology,only innovation can keep the enterprises from being kicked out of the market.The technological and business model innovation are the main form of internet market innovation,both breaking the existing market interest pattern,competition order and the original rules and stimulating new contradictions and conflicts.The internet market competition disputes caused by innovation are also increasing despite of the insufficient law regulations,and the judicial decisions are limited in traditional ways when dealing with innovation-induced competition disputes.Since innovations in the market are easy to be imitated by other market operators,we need the protection and stimulation of law,and good legal system can bring huge institutional dividends.However,over-strict controlling of the market and over-broad protection of the innovative rights are not conducive to the development of the internet market.At the same time,there are a large number of cases of unfair competition in the name of innovation,it often becomes the focus that the innovation should be protected or not.Legal innovation is not exactly the same as innovation in the economic field,from the legal point of view,legitimate innovation not only meets technological requirement,but also confirms value judgment and benefit measurement,that means a legitimate innovation must be novel,progressive and bring a positive effect on the market.In perspective of competition law,legitimate innovation can improve consumer welfare and make it easier for consumers to enjoy innovation,consumer welfare criteria should be one of the important reference in determining the legality of innovation.Internet market is a dynamic competition market,innovation aggravates competition,and competition promotes further innovation.China’s anti-unfair competition law should provide a protective and incentive mechanism in legislation and application by taking promotion of dynamic innovation as a standard in determining legality of innovation.The Anti-unfair Competition law aims to maintain a fair market competition order,it should prohibit the operators’ unfair competition behaviors in the name of innovation,which destroying the market order to obtain competitive advantage to exclude competitors.A fair competition environment is the premise and basis of stimulating innovation,innovation should also be conducive to the establishment of a fair competition order.Therefore,in the internet market,the law needs to guide and guarantee innovation,stipulates more clear legal provisions to settle unfair competition disputes caused by innovation behaviors,makes judicial judgments in accordance with the law of internet development,and encourages the development of innovation in the internet market.Competition stimulates innovation,innovation also intensifies competition.With more and more competition disputes caused by innovation in the internet market,the law should not only protect legal innovation,but also encourage the market to promote the internet market competition and innovation,which requires the legislatures,law enforcement agencies and judicial authorities of a long-term and developmental perspective in dealing with internet unfair competition cases.China should improve the existing legislation,establishing the trend of encouraging innovation,and take innovation as an important factor in determine the legality of competitive behaviors in unfair competition disputes,to guide and encourage technological innovation instead of model innovation through legislation,judicial practice and law enforcement in related cases which our companies commonly ignored.As China’s internet market has been more mature,independent research and development rather than simple imitation should be protected by legislation.Administrative and judicial organs should be more cautious in innovation-related disputes with more encouragement and less interference.It is difficult to regulate internet unfair competition,the regulation of improper competition on the Internet needs not only legislation that conforms to the law of internet development,but also needs good law enforcement and judicial practice.First of all,the identification of the competitive relationships among the operators of the internet market should be differentiated from the traditional relationships.The first problem to be solved in traditional unfair competition cases is that there is a competitive relationship between the parties,but in the internet market,cross-border competition is common since enterprises adopt the platform business model,subjects who seems in different markets often have unfair competition disputes.The importance of competitive relationships is gradually decreasing in the competitive market of internet platforms,and the legitimacy of acts should be the key benchmark for the application of Anti-unfair Competition Law as the law of conduct.Dropping the competition relationship and considering the legitimacy of the act,the Anti-Unfair Competition Law can be applied more flexibly and inclusively.Secondly,the identification of unfair competition behaviors should adopt more industry norms,since they are recognized by the industry and more technical,reflecting the developing law of the internet industry,they play a unique role in the regulation of the internet market.Thirdly,law enforcement and judicial personnel should be cautious and inclusive in dealing with unfair competition disputes.The judgment of the legality of internet market competition is more difficult than that of traditional market,the harm is greater,and the probability and risk of making errors increases.Improper enforcement and judicial conducts can hinder market innovation and cause irreversible losses to the internet market.Therefore,it is necessary for law enforcement agencies and judicial personnel to be more cautious,updating their ideas to break down the inherent mindset to solve the internet unfair competition cases.It is an important part of regulating to perfect the punishment measures for internet unfair competition.One of the phenomena of unfair competition in China is that many internet enterprises have repeatedly carried out unfair competition behaviors,partially because the amount of compensation is too low.In litigation,although one party often claims high compensation,the amount of court decisions is relatively low,and there are few cases of administrative punishment.Compared with great benefits in a short period of time,enterprises are willing to implement unfair competition behaviors at the cost of light punishment.Therefore,to regulate the internet unfair competition behaviors,we should expand the existing scope of compensation,by counting the loss of goodwill of enterprises,etc.,increasing the amount of compensation,reducing the cost of defending rights and raising the cost of infringement through high compensation penalties and deterrence of illegal operators.Punitive damages shall be imposed on enterprises that have engaged in unfair competition on many occasions.The nature of the bilateral market competition on the internet makes it very difficult to determine losses in litigation,and the handling of existing cases also lacks uniform standards.Therefore,we have to refine the factors of determining amount for the internet unfair competition compensation.Strengthening administrative law enforcement is an effective means to sanction the improper competition on the Internet,but China’s current enforcement is obviously not enough,few cases of improper competition are subject to administrative punishment.Administrative law enforcement has a natural advantage in combating unfair competition in fast-spreading internet,we should make good use of the efficient means to stop and combat the illegal internet competition.Criminal sanctions should be imposed upon unfair competition in serious circumstances and violations of criminal law,which require more cautiousness in the internet market.The establishment of a fair and orderly competition market requires effective regulation of the market by regulatory agencies,but effective does not equal to strict.Regulators are accustomed to being skeptical about innovation in the market,too strict of technological and business model innovation in the internet market,which did not show a good effect on solving competition disputes caused by innovation in competition,resulting in considerable difficulties and challenges for start-ups and new entrants in the internet market.It is related to the current ability and level of the regulatory agencies.With the development of the internet market,China’s competition policy and its institutions also need to be updated accordingly,to establish a special internet market regulatory body,by improving the general administration of market supervision and management of the Network Transactions Supervision and Management Division to regulate the competitive behavior specifically in current situation.Institutions need to innovate regulatory concepts and approaches and implement the principle of inclusive and prudent regulation in the innovative internet market.China’s Anti-unfair Competition Law regulates different types of unfair competition behaviors,which provides clear guidance for market subjects,law enforcement agencies and judicial organs,and improves the efficiency of law enforcement and justice.Combined with Article 12 of the Anti-unfair Competition Law and the common unfair competition behaviors in the internet market,the dissertation analyzes the traffic hijacking behavior,the malicious incompatibilities of products and unfair competition for data.Traffic is the life of internet enterprises,traffic competition has also become the most common competition behavior in the internet market,which can not be generally recognized as illegal traffic hijacking and constituted unfair competition.The market allows enterprises to compete for traffic through a legitimate way,but prohibits enterprises to obtain by coercion,misleading,deception and other means to hijack the flow that other operators can have.And the traffic competition caused by innovative behaviors calls for cautious regulation.It is still theoretically controversial whether malicious incompatibilities of the internet market product are illegal.Competition is common in market and enterprises are mutually exclusive,it will inevitably cause losses to competitors in highly competitive internet market,unless it constitutes a monopoly,compatibility is the right of enterprises to operate independently in general.And for the operators themselves in the competition,it’s hard to judge "malice".Therefore,the law should reduce interference in incompatibilities disputes,but it does not mean no legal interference.Some factors such as the nature of the product itself and time,etc.should be taken into consideration to make a reasonable judgment on the compatibility issue.In recent years,with the development of big data industry,the importance of data gradually has been valued by internet enterprises,unfair competition cases relating data competition and utilization has become more and more frequent.Internet data involves the collection,ownership,utilization and other legal issues.As for the rules of data utilization,we should not only protect the privacy of users,but also adopt legislation to establish the rules of data circulation,the information society and the future development of the internet market need the circulation of data,so China should establish the system of data sharing and circulation mechanism in the Anti-unfair Competition Law by stipulating provisions on data unfair competition.Based on the above research,the dissertation puts forward suggestions for amendment and improvement of Article 12 of the Anti-unfair Competition Law.The formulation of internet special article solves the dilemma of the lack of legal basis of administrative law enforcement,meanwhile provides a clearer legal basis for judicial solution of internet unfair competition.However,the effect of the implementation of this article is not ideal,and the provision still needs further improvement.