| With the rapid development of information network technology,the concept of "Internet +" combines the Internet with traditional industries,promotes the upgrading and transformation of various industries,and injects strong impetus into China’s economic development.However,the use of technical means to carry out acts of unfair competition is increasing and showing new characteristics,and the Anti-Unfair Competition Law enacted in 1993 does not make specific provisions on such acts of unfair competition,and judicial adjudicators can only choose to apply general provisions with abstract and general nature when hearing such cases,and phenomena such as different adjudication standards and different judgments in the same case occur from time to time.How to effectively regulate such acts of unfair competition has become a difficult problem in judicial practice,and judicial practice calls for the introduction of corresponding specific provisions are on the rise.When the Anti-Unfair Competition Law was first amended in 2017,it responded to the call of judicial practice by setting up a separate article,the "Internet Special Article".The provision has been controversial since its inception,and some scholars argue that it does not meet the expectations of lawmakers.This paper uses the case analysis method to analyze 127 judicial judgments applying special Internet articles,and concludes that there are mainly the following three problems in the judicial application of this article: First,follow the idea of infringement adjudication,protect the interests of business operators by protecting exclusive rights,and judge the behavior guided by the damage to the interests of business operators.Second,the application of the clauses is insufficient and not standardized,which is embodied in the low application rate of the enumerated clauses,the generalized application of the catch-all clauses,the inconsistent basis for adjudication of the same type of cases,and the need to apply them at the same time as the general clauses.Third,there are differences in the applicable measurement elements.In order to resolve the dilemma in the application and improve the judicial applicability and practicality of Internet special articles,the following countermeasures are proposed: First,reshape the concept of adjudication,return to the value concept of competition law,adhere to the concept of dynamic competition,and adhere to the non-absolute protection of the rights and interests of operators.Secondly,the interpretation optimizes the Internet special article,specifically interpreting the existing enumerated clauses,adding the types of enumerated acts in the judicial interpretation,and interpreting the fallback clause to clarify the scope of application of the catch-all clause.Finally,unify the judicial discretion of special Internet articles in terms of regulating the application of the basis for adjudication,unifying the constituent elements of conduct,and adding guiding cases. |
