Research On The Legal Issues Of The Identification Of Traffic Hijacking Unfair Competition Behavior

Since the emergence of the Internet,new types of unfair competition,led by traffic hijacking,have been frequent.In this regard,in 2017,the Anti-Unfair Competition Law of China added "the Internet special terms"to respond to typical Internet unfair competition behaviors such as traffic hijacking,and formed a legal regulation pattern for Internet unfair competition behaviors through the principle provisions.The promulgation of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Law of the People’s Republic of China Against Unfair Competition in 2022 defined the user-triggered "target jumping" as "compulsory target jumping",thus solving the shortcomings of the "Internet-specific Article The "Internet Article" has been criticized for its inadequacy.Nevertheless,under the wave of Internet development,there are still certain problems in the determination of traffic hijacking in China’s judicial practice,which need to be further studied.In this paper,from the identification of traffic hijacking behavior,based on two aspects of traffic hijacking behavior to be analyzed: first,in the legal basis for the determination of behavior,the "Anti-Unfair Competition Law",Article 2,the Internet special terms and the Supreme Court’s newly promulgated "Interpretation" is the main legal basis for the determination of traffic hijacking;second,in judicial practice,based on the traffic hijacking unfair competition disputes,summarized the current practice The judicial elements and principles of judicial adjudication for traffic hijacking.Through the in-depth study of the legal basis and judicial status of traffic hijacking behavior,it is concluded that the following problems exist in the current legal norms,elements of judicial determination and judicial creation principles: First,in the judicial determination of the basis of behavior,the relationship between the legal mode of conduct is unclear,and the application of general provisions and Internet-specific confusion;second,in the judicial determination of the elements of behavior and principles of adjudication,it is reflected in the doubtful necessity of competition relationship determination,the difficulty of damage compensation determination and the principle of "non-interference necessary for the public interest",then we analyzed the reasons for the above problems from the aspects of the nature of the act and the basis of the determination.Finally,based on the above-mentioned problems,combined with the development trend of the Internet industry,this paper puts forward the following suggestions for improvement: In terms of the basis for judicial determination,the author believes that the understanding and application of the provisions should be further standardized.The understanding of the statutory manner of conduct should be compatible,both as a whole and independent of each other.In view of the inadequacy of the Internet special terms,judicial practice should further clarify the application of legal norms,that is,to follow the principle of specific norms first,the general provisions of the complementary;in the judicial determination of the elements and principles of adjudication,the author believes that the status of competition should be appropriately weakened,improve the determination of damages and the application the principle of "non-interference necessary for the public interest" should be improved.