重庆邮电大学学报（社会科学版）2024，Vol.36Issue(4)：52-66,15.DOI:10.3979/1673-8268.20231220006
数据不正当竞争行为判定的反思与完善
Reflection and improvement on the justification of data unfair competitive behavior
摘要
Abstract
Accurate justification of data unfair competitive behavior is the key to regulating such behavior.An empirical investigation of the judgment documents of data unfair competition cases from 2012 to 2023 found that the judgment para-digm of rights infringement is generally applied to the judgment of data unfair competition behaviors,which leads to the misinterpretation of the legal attribute of the anti-unfair competition law.There is a tendency to broaden the identification of competitive relationships,and its practical value and improvement approach in the application of the Anti-Unfair Com-petition Law in the digital age remain to be clarified.The existing approaches to concretizing business ethics based on the"free-rider"principle,Internet industry conventions,and judges'creative rules cannot resolve the uncertainty of busi-ness ethics.In view of this,for the purpose of promoting the healthy and orderly flow of data and maintaining the competi-tive order in the digital market,it is necessary to realize the systematic reform of the judgment path of data unfair compe-tition behavior.First,it is necessary to realize the effective transformation from the judgment paradigm of rights and inter-ests infringement to the judgment paradigm of behavior justification,so as to ensure that the court's judgment results meet the legal interests protection objectives of the anti-unfair competition law and the needs of the development of digital economy.Secondly,the misunderstanding of"determinism of competitive relationship"should be corrected,and the role of competitive relationship in data unfair competition cases should be adjusted as an important standard for determining the qualification of the plaintiff and a factor for evaluating the degree of damage.Lastly,the establishment of business ethics should take into account both fair competition value and free competition value,follow the steps of determining business ethics content from facts to values,affirm imitation freedom and cautiously use the"free-rider"judgment stand-ard,and investigate whether it complies with laws and regulations and helps maintain competitive order when referring to Internet industry conventions.The specific rules of business ethics should be created to conform to the value goals of the anti-unfair competition law.关键词
数据/不正当竞争/正当性判定/商业道德/竞争秩序Key words
data/unfair competition/legitimacy/business ethics/competition order分类
社会科学引用本文复制引用
陈耿华,陈翰臣..数据不正当竞争行为判定的反思与完善[J].重庆邮电大学学报（社会科学版）,2024,36(4):52-66,15.基金项目
国家社科基金项目:数据不正当竞争行为司法规制的实证研究(21CFX042) （21CFX042）
