Research On The Identification Standard Of Data Capture Unfair Competition Behavior

In the digital economy era with the rapid development of information technology,data,as a new production factor,has become the focus of the platform operators.The huge commercial value behind the data makes the platform operators increasingly fierce competition for data,data capture behavior is a typical.Data capture behavior is not necessarily prohibited by law,but improper data capture behavior may damage the competition order,infringe on the legitimate rights and interests of other operators and consumers,and is not conducive to the use and innovation of data.It is an effective way to crack down on unfair data grabbing behavior to make clear the identification standard of unfair competition behavior.At present,our identification standards for data grasping acts of unfair competition are not uniform,which leads to a series of problems in judicial practice,which are embodied in the following five aspects:First,the general provisions of the Anti-Unfair Competition Law not only cannot provide clear guidance in advance for data capture behavior,but also have great uncertainty in use,which is easy to produce a moral evaluation.Second,the general provisions of the Anti-Unfair Competition Law have different practices in determining the competitive relationship of platform operators.Including the specific scope of "other operators" and the functional positioning of competition in judicial practice,practice is different;Third,there is a judgment mode of "tortification" of competition injury in judicial practice.Fourthly,in judicial practice,the legitimacy boundary of data capture and limit data capture is not clear.Fifthly,the identification standard of the damage liability of the data grabbers is not clear.This paper aims to further analyze the problems existing in the application of unfair competition behaviors of data grabbing in the Anti-Unfair Competition Law by sorting out the practice status of unfair competition behaviors of data grabbing and combining with existing studies,and put forward corresponding suggestions for improvement,so as to provide advance behavioral guidance for platform operators from the perspective of clarifying the identification standards of unfair competition behaviors of data grabbing.Reduce the occurrence of unfair competition,maintain fair competition market order,and create a good digital business environment.This paper is divided into five parts:In the first part,based on the basic principles of data capture,the concept types of data capture,the competitive effect and the reasons for its intervention are expounded.This paper argues that data capture behavior can have the positive effect of enhancing the innovation and investment enthusiasm of Internet enterprises.promoting free and fair market competition,and the negative effect of inhibiting the innovation and investment of data controllers.weakening the vitality of market competition.Excessive data capture behavior beyond the reasonable range may disturb the market competition order,damage other operators.consumers and social public interests,need to be regulated.The second part studies the regulation model of Chinese data grasping unfair competition behavior.Traditional civil and commercial laws,including property law,creditor’s rights law and intellectual property law.all have certain difficulties in the application of data capture behavior.The Anti-Unfair Competition Law has the necessity and feasibility of application.The possible applicable clauses of the Anti-Unfair Competition Law include Article 2.Article 9 and Article 2.However.due to the strict application conditions of Article 9 and the limited application scope of Article 2,Article 2 is mainly used as the basis for judgment in practice.The third part studies the status and problems of the recognition of unfair competition behavior.Through sorting out the cases related to unfair competition behavior of data capture,it is found that there are a series of problems in the identification standard of judicial practice.Firstly,general provisions not only cannot provide clear guidance in advance for data capture behavior.but also have great uncertainty in use,which is easy to produce a moral evaluation.Secondly,the general provisions of the Anti-Unfair Competition Law have different practices in identifying the competitive relationship of platform operators.Third,there is a judgment mode of"tortification" of competition injury in judicial practice.Fourthly,in judicial practice,the legitimacy boundary of data capture and limit data capture is not clear,Fifty,the deta capture party’s liability for damages is not clear.The fourth part studies the experience and enlightenment of the extraterritorial regulation of data capture behavior.By analyzing the legislative and judicial experiences related to data capture in Germany,the United States and Japan,the paper aims to provide reference experience for the improvement of regulations in China,including the German Law against Unfair Competition,the American Law against Un fair Competition and the Japanese Law on the Prevention of Unfair Competition.The fifth part is the improvement of the identification standard of data capture unfair competition behavior.It mainly includes:first,it expands the scope of application of the Internet clauses by adding enumeration clauses in the Internet clauses or issuing judicial interpretations detailing the Internet clauses;Secondly,introduce "proportionality principle" and "efficiency principle" into the general clause to solve the problem of pan-moralization;Third,make clear the function orientation of competition relationship,improve the consideration factors of identifying competition relationship;Fourth,change the mode of competition damage determination from "infringement" to "behavior regulation",and clarify the distribution of burden of proof;Fifthly,through the introduction of the principle of"necessary facilities",the relationship between data capture behavior and data capture behavior restriction is clarified.Sixth,improve the standards for determining liability for damages.