互联网不正当竞争行为的软法规制——兼论软法规制与硬法规制的耦合

Soft Law Regulation of Internet Unfair Competition Behaviors——Also on the Coupling of Soft Law Regulation and Hard Law Regulation

随着互联网商业模式的发展,以《反不正当竞争法》为代表的硬法在规制互联网不正当竞争行为中面临挑战与困境,而软法在治理此类行为中的独特作用却未获足够重视。事实上,以行业自律规范为代表的软法规制效率高,凸显民主性和灵活性,也契合互联网商业模式的特性,符合多元治理的理念。在规制互联网不正当竞争行为中,行业自律规范可作为非正式的法源而被直接援引并作为发现、认定行业公认商业道德及行为标准的渊源。此外,单一的硬法抑或软法规制皆无法独立完成治理互联网不正当竞争行为的任务,唯有软法和硬法相耦合的规制理路才能满足网络市场竞争秩序的治理需求。

With the development and change of the refers to the Anti-unfair Competition Law is faced up internet business model, the hard law which with challenges in the regulation of internet unfair competition behaviors. And at the same time, the unique role of soft law in the management of such behaviors has not been paid enough attention. In fact, the industry self-regulation norms as the representative of the soft law regulation with high efficiency are quite democratic and flexible. They also fit the characteristics of the internet business model and the concepts of multiple governance. In the regulation of the internet unfair competition behaviors, industry self-regulation norms, being informal sources, can be used as the origin of discovering and identifying business ethics, which are widely accepted standards of conduct. Finally, hard law or soft law cannot independently regulate the internet unfair competition behaviors. Only with the coupling of the two can we really regulate the competition order in the network market.