Research On The Filling Methods Of Legal Loopholes

In the era of Big data,data crawling through web crawlers to crawl website data is common.However,when a data crawling behavior is improperly implemented and causes civil disputes,the lack of legal norms to judge leads to the urgent problem of how to determine whether the behavior can continue to be implemented in civil cases.The lack of norms that should be adjusted but not adjusted for data crawling behavior has constituted a legal loophole.This article studies the methods for filling the legal loophole in civil cases,in order to determine how to determine the legality of data grabbing behavior in civil cases and continue to implement it,thus completing the judicial filling of the loophole.This article consists of three parts:The first part introduces the basic concepts.Firstly,introduce the concepts of legality determination and legal loopholes in data capture behavior,and determine the relationship between judicial filling of loopholes and legality determination of behavior.Secondly,through the vulnerability identification method,the data capture behavior and its legal determination are linked to the legal vulnerability theory.After identifying the existence of legal vulnerabilities corresponding to the data capture behavior,it is defined as a legal vulnerability in the legal determination of data capture behavior.Finally,classify vulnerability filling methods into rule-based and ruleless filling methods based on existing rules,and determine the methods to be analyzed.The second part analyzes how to determine the legality of data capture behavior through rule-based filling methods in civil trials to complete judicial filling.When filling in by habit,if there are industrial technical specifications and industrial self-discipline conventions such as robots agreements that allow some data to be captured,their existence constitutes an industry practice in line with Article 10 of the Civil code.When the data capture behavior conforms to the provisions of the industry practice,it can be deemed that the behavior is legal and can continue to be implemented.When using analogy to fill in,it is determined through comparison that using intellectual property law as an analogy is more appropriate than property law,and it can be determined that data capture behavior has legality and can continue to be implemented through the application of legal licensing and fair use systems through analogy.The third part analyzes how to determine the legality of data grabbing behavior through the ruleless filling method,which is the regularization of legal principles,in civil trials to complete judicial filling.The regularization of principles is achieved through the competition law,whose core step is to determine the factual elements that connect case facts with legal principles.After clarifying the legal principles of protecting civil rights and the principle of freedom without prohibition by law,it is determined that the factual elements include the openness of the captured data,the importance of the captured data,the form of income obtained from the captured data,and the damage caused by the captured data.Based on the factual elements,it is determined whether a certain data capture behavior exceeds the scope of freedom of behavior.If it does not exceed the scope of freedom without prohibition by law,the behavior complies with the principle of freedom without prohibition by law,It has legality and can continue to be implemented,otherwise it does not have legality and should be stopped or changed.