我国互联网广告屏蔽行为司法裁判路径优化——基于中德67份裁判文书的文本研究

Optimization of Judicial Judgment Path for Internet Ad-Blocking Behavior in China—Text Analysis Based on 67 Chinese and Germany Judgments

摘要: 互联网经济日新月异发展的同时也给法律规制带来大量新型挑战，反不正当竞争视野下对互联网广告屏蔽行为的认定当属其列。通过收集分析国内现有57份裁判文书，发现我国现有裁判路径具有“一刀切”的僵滞倾向，96%的裁判文书均认定该行为构成不正当竞争，司法机关欠缺对具体行为性质的分析，对多元利益冲突回应不足，存在过度管制与干预的倾向。对比德国法院10份代表性判例，法院秉承自由市场的观念，在“三步走”模式下逐一剖析，其判决立场与我国截然相反。我国可适度借鉴德国裁判路径，摒弃僵化裁判模式，结合考量因素逐案分析，全面权衡经营者、消费者与社会公共三方利益，审慎运用司法手段干预市场，留给市场自主调节的空间。

Abstract: While there has been a rapid development of the Internet economy, a lot of new challenges have been brought to the legal regulation, among which is the identification of the Internet ad blocking acts under the perspective of anti-unfair competition. Through collecting and analyzing 57 existing judgment documents of the country, it is found that the existing judgment path in China has a rigid tendency of “one size fits all”, with 96% of the judgment documents identifying that the acts shall constitute unfair competition, the lack of the analysis of the specific nature of the acts by the judicial organs, the inadequate response to the multiplicity of the conflicts of interest, as well as the tendency of over-regulation and intervention. Comparing with 10 representative precedents from German courts, it can be seen that the court adheres to the concept of free market, analyzes each case under the “three-step” mode, and their judgment position is diametrically opposed to that of China. China can moderately learn from this German judgment path, abandon the rigid judgment mode, take considerations into account in a case-by-case analysis, weigh comprehensively among the interests of three parties, namely the interests of operators, the consumers and the social public, and use prudently the judicial measures to intervene with the market, thus leaving the room for independent market regulation.