關於《反不正當競爭法》一般條款法律適用規則研究

Abstract

The application of general provisions of the Anti-Unfair Competition Law mainly refers to the direct application of Article 2 of the Anti-Unfair Competition Law (rather than specific provisions) as the legal basis for judging whether an act constitutes unfair competition in the judicial adjudication of individual cases of unfair competition.

To study the problem of anti-unfair competition, we should first study the general provisions of the Anti-unfair Competition Law. From the legislative point of view, the general clause is the "fundamental basis" of the law against unfair competition and the principal basis for the interpretation of other specific legal provisions. From the practical point of view, the endless new legal problems of unfair competition cannot be found in the current laws, so we can only resort to the general provisions for determination, and the abstractness of the general provisions requires judges to exercise their discretion for the application of the general provisions.

In practice, the courts have been enriching and developing the general provisions through individual cases. Throughout the judicial process of unfair competition, there have been a large number of cases with distinctive characteristics in the past 20 years since the implementation of the Anti-Unfair Competition Law of the People's Republic of China in 1993. New cases emerge in an endless stream, and new business practices always rely on judicial judgments to judge their development prospects from a legal perspective. However, inconsistent judicial decisions occur from time to time. The opinions and standards of adjudication in judicial organs are not unified, and the phenomenon of "different judgments in the same kind of cases" occurs from time to time. Judges and academia often have divergent views on certain cases and have not yet formed a relatively unified or mainstream view. These problems have affected the unity of judicial judgment on unfair competition, and also have become the obstacles to the development of many new commercial behaviours due to different judgments on legality. Therefore, the research on the application of the general provisions regarding the unfair competition is urgent and meaningful. This thesis adopts methodologies of case study of relevant judgments and doctrinal study of legal theories.

The research of this paper mainly solves four problems: in what circumstances can the general provisions of the Anti-Unfair Competition Law be applied, what is the basic framework that should be applied, and what are the judgment criteria and specific judgment methods of "unfair" competition behaviour. The study of these four questions is step-by-step, from the relationship between the general provisions and other laws with other provisions, to the understanding of the requirements for the application of the provisions, and then to the core issues of the general provisions and the standards for identifying unfair competition. All these four problems are indispensable in the application process of the general terms, absence of any which will affect the application of the general terms.

Chapter 2 studies the theory of the general provisions of anti-unfair competition law and identifies that the rules are derived from the boundary theory of the law and the intellectual property law. When applying the rules, the consciousness of "boundary" should be established, and the part abandoned by the intellectual property law should not be intruded into, and the internal balance of the intellectual property law should not be impaired. Chapter 3 studies the legal norms of anti-unfair competition law, and identifies that the rules come from the legal norms themselves: the relationship between anti-unfair competition law and intellectual property law determines that the application of the general provisions cannot exceed the boundary of the scope of adjustment between laws; the nature of anti-unfair competition law determines that the application of the general provisions should be based on the basic principle of judging whether the act violates the principle of good faith; the excessive emphasis on damage results should be abandoned; the positioning issue of market competition law, when guiding behaviour to judge the principle of honesty and credit, inevitably extends to the method of interest measurement, but it is constrained and verified by the legislation purpose. Chapter 4 studies the principle of good faith in the general provisions, and identifies that the rules also come from outside the legal norms: the principle of good faith should be embodied from the perspective of commercial customs and conventions, and enriched from social, economic, ethical and other aspects; in the field of recognized commercial ethics, whether commercial behaviour conforms to the principle of honesty and credit should also be demonstrated in the process of legislative purposes; in the emerging business field where the recognized business ethics has not been formed, the pattern of interests has not been finalized, and the behaviour pattern generally accepted by all parties has not appeared. Therefore, there is a greater need of using the method of interest measurement to identify unfair competition. The fourth chapter also studies the basic methods of applying interest measurement from legal interpretation, such as the hierarchy of rights, the specific steps of measurement, etc. Finally, in Chapter 5, this thesis experimentally applies the above rules in the new type of unfair competition in the network disputes, summarizes the logic of application and the specific factors of consideration, and specifies the judges’ discretion with more rules.

The main contributions of this thesis are the application of the rules with more specific and comprehensive contents and methods, and the specific "test". The "test" mentioned in this thesis is the basic standard and method of "business ethics plus interest measurement". First, according to the nature of the anti-unfair competition law and its objective orientation, the behaviour judgment standard system is proposed in line with the market competition law, including the application of the principle of good faith into industry practice, technical specifications and economic common-sense point of view, while allowing the judicial creation of business rules; meanwhile, the system should be verified by the rules of legislation purpose. Second, it is analysed when and how to measure the interests. In areas where the business ethics have been recognized, the interest measurement has been confirmed and can be applied directly. In areas where the business ethics have not been recognized, the legal issues need to be judged by means of the measure of interests.

Date of Award	24 Aug 2021
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Wenwei GUAN (Supervisor) & Liang Zhao (External Co-Supervisor)