Judicial judgment of ‘Malicious Incompatibility’: based on the study of Chinese judicial practice

Abstract

How to judge the formation of Malicious Incompatibility is a problem that cannot be circumvented and is difficult to solve in the trial of new types of unfair competition on the Internet. Although the revised Anti-Unfair Competition Law explicitly stipulates Malicious Incompatibility as unfair competition, it fails to provide a clear set of judgment criteria. Germany and the United States have respectively developed complete laws and regulations and created judgment rules to deal with new unfair competition disputes arising in the development of the Internet, providing China with a lot of referential trial ideas. By collecting and analyzing the judgment documents and trial ideas of previous cases, this paper, focusing on the internal logic of malice and incompatibility in the law, tries to judge whether the behavior constitutes Malicious Incompatibility considered from the perspective of subjective purposes and the objective effects caused by the behavior and with the method of value measurement.