Study On The Regulation Of Anti-unfair Competition Law To Crawling Information Behavior

February 22 nd,2017,at the 26 th meeting of the 12 th NPC Standing Committee,the State Council submitted the Anti-Unfair Competition Law(Revised Draft)to the NPC for deliberation.the first revision of the Anti-Unfair Competition Law,which is the first revision of the Anti-Unfair Competition Law since its implementation in 1993.In response to the Internet unfair competition,a new provision(Article 14)was added in the Revised Draft.Nevertheless,the new means of Internet unfair competition appeared unceasingly in the virtual internet competition environment,so that the internet unfair competitions listed in the new provision can't cover all existed improper means of internet competition,crawling information behavior is certainly an example.Crawling Information Behavior is the whole process that the search engines use the Web Spider to get all kinds of information related to the network users' research topic,and then present to the users after filtering and integrating.Crawling information was initially created as a neutral technology to speed up information retrieval and guarantee results more accurate.However,in recent years,the competition in the internet market becomes more and more fierce,so that crawling information behavior has increasingly become an improper means of competition,which is aimed at seizing the core resources of the competitors,and looting customers.Meanwhile,crawling information behavior has resulted in many unfair competition disputes.By analyzing the subject,object,subjective purposes,means and result of the alienated crawling information behavior,and combining with the judicial practices,we can find that when the Internet operators implement crawling information behavior as a competition means,it will lead to violate the principle of honesty,good faith and public commercial moral,damage other Internet operators' legal rights and interests,disturb the order of the internet market,which has accountability and therefore should be regulated with law.The damages of crawling information behavior stems from that the competitive relationship is increasingly visible,and the result is disturbing the order of the internet market.Therefore,with the combination of the theoretical basis,legislation and practice,we will find that the Regulation of Anti-Unfair Competition Law to Crawling Information Behavior is irreplaceable and feasible.Especially,combining the general terms with the specific enumeration legislation mode of the Anti-Unfair Competition Law could not only make up for the defects of statute law,but also create the path to regulation.Meanwhile,on the analysis of the judicial practices,such like Dianping V.Baidu case,the application of the Anti-Unfair Competition Law is the common choice of the courts.It's hard to ignore the fact that the Anti-Unfair Competition Law has been enacted for 23 years.Under the legislation background,internet market is still at the embryonic stage,the characteristics are not prominent,so that legislation didn't pay attention to the competition of the internet market.The result is that 11 specific enumerations of the Anti-Unfair Competition Law does not cover Crawling Information Behavior,meanwhile,the general terms which is called as catch-all clause is limited when cognizance the illegality limitation of the Crawling Information Behavior,which is actually providing too much free judgment right to judges.Moreover,owing to the lack of stop-loss systems,and the short of law system of indemnity,the existing losses of the aggrieved parties will continue expanding.Administrative regulation,which the Anti-Unfair Competition Law has high hopes for,faces a difficulty that administrative department is too inexperienced and unprofessional to supervise the Crawling Information Behavior.What's more,administrative department is the exclusive regulators who has legal authorization.Obviously,there have been so many problems in the inter-supervision over administrative law-enforcement of administrative organs that the effect thereof has not been brought into full play.Crawling Information Behavior is the epitome of the internet unfair competition.Therefore,clarifying special constitutive elements of the new internet unfair competition behavior is the key to solve the regulation dilemma of the Anti-Unfair Competition Law to Crawling Information Behavior.Specifically,special constitutive elementsof the new internet unfair competition behaviorincludethat competitive relationship is generalized,subjective intent is to damage basic operation modes of their competitors,besides,legal consequencescombine is determined by combining tangible effect and incorporeal effect,finally,and most importantly,determining it as illegalunfair competition.And on abovebasis,perfecting system construction from permitting private remedy and introducing an injunction before litigating,and stipulating discretionary circumstances and standard system of the compensation for damages,to protect legitimate interests of the Internet operators.Besides,authorizing the Ministry of Industry and Information Technology to participate in the regulation of the internet unfair competition,strengthening the construction of credit system and improving technology means of the web-monitoring,finally achieve regulatory specialization.Through the improvement of systems above,not only strengthen regulation of the Crawling Information Behavior,but also lay the foundation for the future problems of the internet unfair competition.Above all,strengthening the Regulation of Anti-Unfair Competition Law to Crawling Information Behavior is the realistic need ofprotecting legal rights and interests of operators and consumers,restoring the market competition mechanism,maintaining the order of market competition.Ultimately stimulating technological innovation in internet market and consolidating the achievementsto promote sound development of the Internet.