| The development of information technology not only improves people’s quality of life,but also promotes the rapid development of China’s Internet market economy.Due to the huge development potential of the network industry,more and more market players join in and compete for it in order to obtain economic benefits.The increasingly fierce competition has spawned a variety of ways of competition,traffic hijacking is a typical one.Traffic hijacking simply means that the actor uses technology or other means to hijack the user’s traffic without the user’s knowledge or consent,increase his own website visits and damage the traffic of other websites.This kind of behavior not only makes the market subject of hijacked traffic lose the opportunity to trade with users,loses the amount of data that should belong to its website,and reduces the economic benefits,but also infringes on the right to know and the right to choose of network users,destroys the fair order of Internet market competition,and endangers the healthy operation of China’s market economy.In recent years,there are more and more traffic hijacking cases,and the discussion of them,whether in judicial practice or academic theory,has been uninterrupted.Based on the analysis of typical cases,combined with the academic views of the theoretical circle and the trial principles summarized in the judicial practice,this paper puts forward the problems existing in the identification of traffic hijacking behavior,and gives relevant suggestions for improvement.This article is divided into four parts.The first part sorts out five typical traffic hijacking cases in my country’s judicial practice in recent years,After analyzing their case,the focus of disputes,and the reasons for the court’s judgment,it is pointed out that the core of traffic hijacking disputes lies in The difficulty in determining traffic contention and traffic hijacking lies in the determination of impropriety.The second part mainly expounds the basic elements and principles of traffic hijacking behavior.First of all,theoretically analyze the basic requirements of the identification of traffic hijacking behavior.The theoretical circle of our country usually determines from the four aspects of subject,behavior,subjective fault,and damage result.Secondly,in judicial practice,Chinese courts have also summed up some trial principles in the process of hearing such cases,and these principles have been systematically elaborated in this part.The third part,through the above system analysis,pointed out that my country’s current problems in identifying traffic hijacking behaviors are first manifested in the identification of the subject,the difficulty in identifying the subject under the broad competitive relationship in my country,and the difficulty in identifying the subject under the broad competitive relationship in China.At present,the protection of the rights and interests of network users is not enough,and the scope of rights protection subjects is narrow;secondly,the application of the principle of n "on-public welfare necessary without interference" has the problem of ambiguity and unclear boundaries;Finally,whether the principle of "technology neutrality" can be used as a defense And what applicable conditions are questioned.The fourth part proposes perfect suggestions for the determination of unfair competition behavior of traffic hijacking.First,we must improve the subject’s identification rules.We must not only weaken the position of competition,but also pay attention to safeguarding the legitimate rights and interests of network users.Second,we must improve the principle of "non-public interest,necessary and non-interference",and make it clear that the application must be based on "malicious" as the prerequisite.Clarify the connotation of "public welfare".Finally,it is necessary to clarify the relationship between technological innovation and unfair competition.In addition to clarifying the scope of application of technological principles,it is also necessary to protect true technological innovation. |
