關於《反不正當競爭法》一般條款法律適用規則研究

Research on the Legal Application Rules of the General Provisions of the Anti-Unfair Competition Law

Student thesis: Doctoral Thesis

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Author(s)

  • Qingshuang XU

Related Research Unit(s)

Detail(s)

Awarding Institution
Supervisors/Advisors
  • Liang ZHAO (Supervisor)
  • Wenwei GUAN (Supervisor)
  • Liang Zhao (External person) (External Co-Supervisor)
Award date24 Aug 2021

Abstract

反不正当竞争法一般条款适用,主要指在不正当竞争案件的个案司法裁决中直接适用反不正当竞争法第二条(而非具体条款)作为法律依据裁判某行为是否构成不正当竞争。

研究反不正当竞争问题,首先要研究反不正当竞争法的一般条款。从立法角度,一般条款是反不正当竞争法的“根本”,是解释其他具体法律条文的根本依据;从实践角度看,层出不穷的新型不正当竞争法律问题,在现行法条中找不到法律依据,只能求助于一般条款加以判断,而一般条款的抽象性决定了需要法官的自由裁量加以适用。

实践中,法院确实正在通过个案填充不断实现着对一般条款的丰富与发展。纵观不正当竞争司法,自1993年反不正当竞争法实施以来,20年中产生了大量特点鲜明的案例。新案层出不穷,新型商业行为总是依赖司法判断从法律角度评判其发展前景。然而,司法判决冲突现象时有发生,司法机关内部裁判观点、尺度不统一、“同案不同判”现象时有发生;司法与学界对于某类案件的观点也时常存在分野,尚未形成相对统一或者主流观点。正是这些问题,影响了司法在不正当竞争司法判断上的统一性,也对众多新型商业行为因合法性判断不一而出现行业发展障碍,因此,反不正当竞争一般条款适用研究急迫而有意义。本文主要采用了案例分析方法和法律理论教义研究方法。

本文的研究主要解决了4个问题:对于反不正当竞争法一般条款什么情形下可以适用,适用时应当围绕的基本原则框架是什么,竞争行为“不正当”的判断标准和具体判断方法是什么。这4个问题是循序渐进的,从一般条款与外部法律、其他条款的关系,到该条款适用的要件理解,再到一般条款的核心问题及认定不正当竞争的标准问题。这4个问题在一般条款的适用过程中缺一不可,否则将影响一般条款适用。

第2章研究反不正当竞争法一般条款理论,发现规则来源于该法与知识产权法的边界理论,在适用时要树立“边界”意识,不能侵入到知识产权法放弃保护的部分,不得破坏知识产权法的内部平衡。

第3章研究反不正当竞争法法律规范,发现规则来源于法律规范自身:反不正当竞争法与知识产权法之间的关系决定一般条款的适用不能超出法律之间的调整范围的边界;反不正当竞争法属性决定一般条款适用应以行为是否违反诚实信用原则为判断基本原则,抛弃对损害结果的过度强调;市场竞争法的定位问题则说明行为进行诚实信用则判断时不可避免地要适用利益衡量方法,但又受到立法目的的约束和验证。

第4章研究一般条款中的诚实信用原则,发现规则也来源于法律规范之外:诚实信用应当从商业习俗、惯例角度对诚实信用原则进行具体化,并从社会、经济、伦理等多层面加以丰富;存在公认商业道德的领域,商业行为是否符合诚实信用原则还应当进行合乎立法目的的过程论证;在尚未形成公认商业道德的新兴商业领域,利益格局尚未定型,各方普遍接受的行为模式还没有出现,认定不正当竞争更加需要用利益衡量的方法。第四章还研究了关于适用利益衡量的基本方法来源于法律解释,如权利的层级、衡量的具体步骤等。最后第5章,本文对以上规则在网络新型不正当竞争案件中进行了实验性适用,归纳了适用逻辑与具体考量因素,使得法官自由裁量判断更加具体化。

本文的主要贡献,是针对适用规则提出了更加具体、全面的内容和方法,提供了具体“尺度”。本文所讲的“尺度”是“商业道德+利益衡量”的基本标准和方法。第一,提出在反不正当竞争法的属性及目标导向下,确定符合竞争法市场属性的行为判断标准体系,包括将诚实信用原则具体化为行业惯例、技术规范、经济常识观点等,同时允许司法创设商业规则,但又提出要借助立法目的规则加以验证;第二,对何时利益衡量为主和如何进行衡量进行了分析。在具有公认商业道德的领域,权利衡量已经被确认,直接应用即可;在没有公认商业道德的领域,则需要借助利益衡量的方法加以判断。
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.

    Research areas

  • Anti-unfair competition law, General provisions, Acts of unfair competition, Principle of good faith, Business ethics, Application of law, Internet