Research On China’s Regulation To Internet Unfair Competition Behaviors

With the rapid improvement of economy and the increasingly frequent information interaction in the context of digital economy,the Internet has become an essential tool for people’s life,work and daily information exchange.In addition to the steady development of the traditional economy,the rapid emergence of the Internet economic market has also attracted the attention of all sectors of society.On November 4,2017,the 30 th session of the Standing Committee of the 12 th National People’s Congress passed Article 12 of the Anti-Unfair Competition Law.It’s a special provision for unfair competition on the Internet.It not only has a significant impact on the definition of new unfair competition in this field,but also gives administrative organs the power of law enforcement and certain discretion to the new unfair competition on the Internet.This paper discusses the legal regulation of unfair competition in the Internet field from the perspective of the new Anti-Unfair Competition Law.For the new type of unfair competition,the civil law system generally adopts the regulation mode of specific general terms.However,it can be seen from the regulation terms of the new Anti-Unfair Competition Law that the current Internet terms have not reached the standard of specific general terms.There are two main problems: On the one hand,the general terms are not specific enough,which is embodied in that Article 12 has not been completely separated from Article 2,and can’t judge the illegality of behavior through facts like other kinds of unfair competition behaviors.It still needs to rely on good faith and business ethics to identify the value categories such as "malice" and then judge the illegality of behavior.On the other hand,the Internet unfair competition clause does not fully respond to the previous judicial practice.The types of Internet unfair competition in the previous judicial practice are not fully covered.The law adopts “onesize-fits-all” regulation mode of “per se illegal”.This regulation mode is not the full embodiment of the judicial practice experience of unfair competition in the Internet field.In order to solve these problems,this paper discusses the basic principles,model selection,legislation,law enforcement and justice.To explore the regulation of Internet unfair competition in China from the perspective of theoretical analysis,we first need to return to the origin of Internet unfair competition: the overall context of Internet competition,the subjects involved in the competition,the competition mode and the demand for competitive interests.Internet unfair competition occurs in the network environment.On the one hand,it has technical characteristics.On the other hand,due to the universal existence of multilateral markets,the demands for competitive interests of the Internet should not only consider the gains and losses of direct competition from the perspective of competitors,but also comprehensively analyze the competition between Internet operators in the same industry and the competition between non-Industry Internet operators,the competition and complementarity between Internet operators and non-Internet operators,as well as the impact of the above-mentioned dimensions on the overall interests of consumers.After this sort of combing,we can preliminarily clarify the path of competitive interest balance in the regulation of Internet unfair competition from the above aspects.Based on the theoretical analysis,this paper discusses the current situation of the legal regulation of Internet unfair competition from the perspective of legislation,law enforcement and justice.The legal regulation of Internet unfair competition in China is in the transitional period.In terms of legislation,the new amendment of Article 12 of the Anti-Unfair Competition Law,namely the special provisions for Internet unfair competition,has changed the logic of the application of competition law in the field of Internet;In terms of law enforcement,law enforcement agencies have not only obtained the law enforcement power for the first time against technical Internet unfair competition,but also obtained the discretion to identify illegal acts through the miscellaneous provision.Not only that,when competitors are facing the dispute of unfair competition on the Internet,they have also changed from the single civil lawsuit relief in the past to the "dual" mode of concurrent reporting and civil lawsuit.How administrative organs play a good role and make the special provisions of Internet unfair competition play a guiding and evaluating role in strengthening the judgment and relief of Internet unfair competition has become a new proposition faced by the special provisions of Internet unfair competition;Although the administration of justice and administrative law enforcement are parallel,they still cross each other.On the one hand,if the authorization of administrative law enforcement is not helpful to guide the benign competition in the Internet field,then it can be said that the legislation or at least the implementation of the new law is a failure.On the other hand,the court not only bears the function of civil litigation,but also bears the judicial review function of administrative litigation for the law enforcement cases of administrative organs.Therefore,the standards and experience of the court’s civil procedure in the past are also very important resources.From the past cases of unfair competition on the Internet,the court pays attention to the long-term incentive effect of the judgment.In other word,in the analysis of civil trial,the court is not limited to the case,but is trying to explore a more universal standard of competitive interest balance.At present,the lack of legal regulation of unfair competition in this field is reflected in legislation,law enforcement and justice.After the new Anti-Unfair Competition Law is added to the Internet unfair competition clause in legislation,there are not only many laws regulating the Internet unfair competition at the same time,but also the logic confusion caused by Article 12 itself,which must be solved in practice.In terms of law enforcement,the market supervision and administration departments at or above the county level all enjoy the law enforcement power of the Anti-Unfair Competition Law.The multiple levels of law enforcement will naturally lead to the uneven level of law enforcement.At the same time,law enforcement agencies will also show inexperience due to their first access to law enforcement power.At the judicial level,although there are a lot of unfair competition decisions in the court,up to now,judicial interpretation has not been formed on the basis of fully combing the cases,which leads to uncertainty and instability in the application of law.In the world,there is no special legislation for Internet technology-based unfair competition.There are narrow legislation of “rightism” mode and broad legislation of “legalism” mode.The legislation of “rightism” unfair competition is represented by the United States,which only legislates for the object with right attribute such as copyright and name right.If we transplant the behavior of “shielding” and “jumping” in our country to the United States,we can foresee that the legislation of the United States has limited regulatory capacity for such behavior;The legislation of “legalism” mode is represented by Germany.The German anti-unfair competition law focuses on the analysis of good customs and the overall interests of consumers,makes flexible adjustment to the unfair competition behavior in the Internet field,and constantly concretizes the general rules through the accumulation of judicial experience.In addition,it can also be seen that since the anti-unfair competition law originated from the French tort law,it is considered as a part of private law in many jurisdictions,and the administrative organs usually do not have the right to enforce the law.However,it can be seen from the procedural multilateral agreements implemented by some international organizations that there is a consensus that competition agencies need to enforce the law through due process.Combined with foreign experience and China’s actual situation,first of all,in legislation,the emergence of special provisions for unfair competition in mutually beneficial networks indicates that China has not adopted the “legalism” model legislation;From the uncertainty of many concepts in the special provisions of Internet unfair competition regulation,we can see that China has not adopted the narrow legislation of "rightism",that is,it has not raised the elements and interests of Internet competition into rights,but a compromise between rights and legal interests.Therefore,the focus of China’s legal regulation of Internet unfair competition lies in how to bridge the uncertainty of many concepts in the terms of Internet unfair competition.In this regard,Germany,through the judicial system of case group,classifies the repeatedly recognized acts in judicial practice,and creates the theory of "efficiency competition" in determining the damage of acts,and constantly through the division The law promotes legislation and forms a closed-loop system construction,implementation and response,which are beneficial experiences for the improvement of China’s Internet anti unfair competition regulation.To sum up,the legal regulation of unfair competition in the Internet field lacks the guidance of operability.Therefore,the determination of the improper behavior still needs to be carried out from the perspective of good faith and business ethics.At the same time,attention should be paid to the realization of the interest balance and incentive compatibility of regulation,as well as the maintenance of inclusiveness,prudence and technology neutrality;In the aspect of mode selection,we should change from unitary regulation to multiple regulation,and abandon the idea of illegal regulation;In the aspect of legislation,we should make behavior type,elements type and standards clear;In terms of law enforcement,it is necessary to formulate and implement relevant major policies,uphold the concept of neutral law enforcement,strengthen coordination and cooperation among institutions in the context of multiple regulations,and guide industry self-discipline;In judicature,we should learn from foreign experience,form stable judgment ideas and standards,and improve judicature and promote legislation through the implementation of judicial policies of case groups,so as to achieve a virtuous circle.Finally,this paper also hopes to explore the problem is that due to the widespread emergence of special legislation in the field of Internet in China,there is a need for docking and coordination between different departments of law enforcement agencies and between law enforcement agencies and judicial agencies,such as the "two choices" problem that is currently fermenting.Anti-Unfair Competition Law,Anti-Monopoly Law and E-Commerce Law all have applicable space,which is not only the problem of law application,but also the choice of procedure,relief and cost efficiency.However,the research on the coordination and balance of the implementation of multi head special legislation still needs more practical research resources.