Judgment On Legitimacy Of The Behavior Of Blocking Network Advertising From The Perspective Of Competition Law

With the rapid development of Internet economy,all kinds of new competitive behaviors have appeared one after another.The new features and ways contained in them often overwhelmed the market,and the nature of behaviors is difficult to distinguish.Therefore,how to distinguish whether the competition behavior is legitimate or not has become one of the difficult problems facing the anti-unfair competition law.In recent years,the booming online advertising industry has become an indispensable part of the current Internet economy.However,increasing demands for profits and "savage growth" of advertising volume have brought great troubles to consumers.In this context,the network advertising blocking behavior came into being,although to meet the actual needs of the majority of users,which led to serious damage to the network advertising industry.Therefore,the network advertising blocking behavior has been involved in litigation since the day of its emergence,which has aroused hot social debate.As for the issue of "whether the network advertising blocking behavior is justified",a variety of opinions have repeatedly emerged in China's judicial practice,and two contradictory judgments have been generated.At present,the courts in our country are mostly based on the"general clause" of Article 2 of the Anti-Unfair Competition Law and the Article 12,paragraph 2(4),which both are fuzzy and lack of stability,reducing the judicial credibility and causing adverse impact on the market competition environment.In view of this,this paper argues that our courts can learn from the judicial thinking of the United States,Germany and other countries to change the current judicial chaos.In China,the cases of network advertising blocking frequent happens,and the resulting decisions differ in many ways,but it can be divided into two kinds:the first is the business model "rights" as the core of the path,the other is based on "competitive behavior legitimacy" as the core idea of argument.Different thinking path has different emphasis,and how to apply correctly is still a big problem.It is required that the courts must analysis the relevant provisions of "the anti-unfair competition law",and rely on the comprehensive considerations of involved principles,including the subjective factors of good faith,business ethics,and subjective malice element,and the objective factors of operator interests,consumer interests and social public interests,thoroughly to see "whether the network advertising blocking behavior has legitimacy",and fundamentally to solve such disputes.Finally,in the case of network advertising blocking,this paper starts from the correct application of the law,and then analyzes the subjective factors and objective factors,and then clarifies a specific thinking.This paper argues that such cases in the future still need to use the article 2 of"anti-unfair competition law" rather than the paragraph 2 of article 12(4).Specifically,it can be divided into two situations.Firstly,according to a few typical cases,the court can base on the principle of "good faith " or"business ethics",and then directly obtain the conclusion.Secondly,for the most complicated cases,with the aid of the tool of "interest measurement",the court should make clear the connotation of "interest measurement",determine the correct order,and then fully demonstrate the objective impacts of the behavior,and finally conclude a reasonable and lawful conclusion,which can be accurately predicted.