| In response to practical needs,Article 12 of the 2017 Anti-Unfair Competition Law was added when it was amended to regulate unfair competition in cyberspace,which is generally referred to as "Internet Special Article".However,the purpose of concluding the "Internet special clause" does not seem to have been fully realized,and it is being vacant in the trial,which led to the consequences of the expansion of the general clause.However,the requirements of the general provisions are relatively simple,and the meaning of the provisions is very broad and subjective.It is necessary to clarify what kind of network unfair competition disputes should apply to the Internet special clause? Which can the general terms apply? In order to optimize the application of Internet special clauses and general clauses in cases of network unfair competition,we must watch out for issues with extensive moralization and conflicting rulings in the same situation brought on by the overuse of general clauses.This paper studies from the following five parts.The introduction is the first section.A typical case of the second instance to change the sentence leads to the problems of this paper,and introduces the value of this paper.Secondly,summarizing the scholars’ views and putting forward the possible innovations and shortcomings of this article.Then,this paper introduces the research design.Finally,the data sources and screening methods of this study are introduced.The legal justification for identifying unjust rivalry on the Internet is explained in the second section.Before the Internet specific rules were adopted and put into effect in 2018,judges usually cited the general provisions as the basis for adjudication of disputes over unfair competition on the Internet,and formed a relatively stable adjudication paradigm.However,due to the restrictions on how the General Terms may be used and to prevent the General Terms from being overly expansive the Internet Special Terms came out.Unfortunately,its promulgation did not alleviate the pressure of the application of the General Terms.The third section deals with the legal procedure for identifying unfair online competition.Through searching and reading,a total of 164 judgments on unfair competition in the network were screened.By sorting out the elements of competition type,law application,adjudication path,trial procedure and adjudication result,we can summarize three adjudication paths for judges to try online unfair competition in practice.In the judicial practice of network unfair competition,it is clearly clear that there are still issues with the application of the general laws and Internet-specific provisions.The definition of the court practice for identifying unfair competition on the Internet is covered in the fourth section.In cases where the Internet special articles are cited as the basis for adjudication,there are still some problems such as the type clauses in the Internet special articles are ignored,and the application requirements of the cover clauses are different.The reason is that there are limitations in the text setting of the type clauses in the Internet special articles,and the cover clauses are too broad and the application requirements are not clear.In cases where the general provisions are invoked for adjudication,the general provisions have the problem of being expanded and invoked.The primary cause is that it’s unclear where the general rules and the Internet particular provisions apply to one other.In cases where both the general clause and the Internet special clause are invoked,the general clause still plays a complementary role in the adjudication.The main reason is that the judge get rid of the path dependence on the general clause inabilitily in judicial practice.The fifth part is the suggestions for how the legislation should be applied to better identify network unfair competition.The paper puts forward suggestions from judicial and legislative aspects.The paper contends that before the Anti-Unfair Competition Law is revised,the judicial application of Internet special clauses and general clauses can be improved by interpreting the typed clauses,clarifying the application requirements of the basic clauses,clarifying the application order and boundary of the general clauses and Internet special clauses,and raising the application level of the law in judicial trials. |
