网络不当干扰行为的认定标准:学理与裁判的双重视角

Criteria for Identifying Improper Network Interference Behavior: A Dual Perspective of Academics and Referees

"非公益必要不干扰原则"与主观恶意标准是网络不当干扰行为认定的两种思路。从学理与裁判双重角度视之,"非公益必要不干扰原则"在适用中遭遇了法律依据乏力、要件间逻辑关系颠倒、要素外延不当限缩、竞争政策精神背离等困境。司法实践长期未严格将主观恶意标准作为不正当竞争行为认定的必要条件,个案考量亦是基于经营者合法利益的认知,有违反不正当竞争法的行为法属性及其所保护的法益——公平竞争秩序。因此,在认定中,经营者"明知"应以行为对竞争秩序的损害为主,兼顾行为是否违背商业道德来推断经营者是否具有恶意。

The principle of "Non-Interference Unless for Public Interest" and the standard of subjective malice are two ways to identify the improper network interference behavior. From the perspective of theory and judgment, the principle of "Non-Interference Unless for Public Interest" has encountered many difficulties in its application, such as lack of legal basis, reversal of logical relationship between elements, improper restriction of elements extension, and deviation of competition policy spirit. For a long time, the judicial practice has not strictly regarded the subjective elements as the necessary conditions for the identification of unfair competition behavior, and the case consideration is also based on the cognition of the operators’ legitimate interests, which violates the attributes of the behavior law of unfair competition law and the legal interests it protects, i.e. fair competition order. Therefore, in the identification, the Enterprises’ "knowing" should be based on the damage of the behavior to the competition order, taking into account whether the behavior violates business ethics so as to infer whether the operator has malice.