奇虎360诉腾讯QQ滥用市场支配地位案一审评析(五)
Tencent QQ defenses that the reason of “incompatibility of product” of QQ software with Qihoo 360 antivirus software is originated from infringement of Qihoo 360. It is also legitimate remedy by self. However, according to regulation of “General principles of the civil law", "Tort liability law" in china, self-defense and emergency hedge are not more than the limits of necessity.
As civil judgment of No.12237 2011) Second China Zhong Zi of Beijing Second Intermediate People's Court, Qihoo360 took Unfair competition on Tencent QQ. As a result, the legitimate rights and interests of Tencent QQ at that time were really in danger. But even if Tencent QQ needs to take self-defense, the target should be Qihoo 360, not getting users involved.
At the same time, Tencent QQ has rights to apply to the courts for temporary restraining order while their legitimate rights and interests may be infringed in emergency, However, Tencent QQ did not exercise their litigation rights in accordance with the law to stop the illegal violation, but take "either-Or for users" by side to intense the "3 Q war " to users. In addition, no matter Qihoo 360 forced users to use QQ bodyguard, whether hijacked the QQ security module and led to a QQ lost related functionality, Tencent QQ has no right to force the users to remove 360 softwares.
Right scope of Tencent QQ is limited to risk warning. But whether to remove Qihoo 360 software is the inherent right of the users, Tencent QQ could not make choice instead of users.
D. the Author’s view on whether “incompatibility of product”of Tencent is illegal.