The expansion and distortion of the"Notice-and-Takedown"mechanism under Articles 41-45 of the E-commerce Law has led to a significant imbalance between the rights of complainants and respondents,with the issue of malicious complaints becoming particularly problematic."Reverse be-havior preservation"has emerged as a form of interim judicial relief for respondents and has gained traction in practice.However,the concept of"reverse behavior preservation"reflects a misunder-standing of the behavior preservation system and the roles of parties in complaint disputes.As a result,it fails to effectively address the imbalance of interests.By clarifying the nature and purpose of reverse behavior preservation,deconstructing the preservation requests and claims in malicious complaint cases,and re-evaluating the respondent's right to passive confirmation of benefits,a more reliable the-oretical foundation can be established for behavior preservation in such disputes.Based on this,the essential elements of preservation—"urgency+irreparable harm"—are affirmed,with no require-ment for guarantees.The review of these elements should be guided by the theory of balanced rights and interests and the principle of proportionality,ensuring both parties have the right to be heard.
关键词
恶意投诉/反向行为保全/定暂时状态假处分/消极确认利益
Key words
malicious complaint/reverse behavior preservation/temporary sanction for certain tempo-rary status/passive determination of benefits
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