Research On The Complementation Of General Clause Of The Anti-unfair Competition Law

The general clause occupies the core position in the Anti-unfair Competition Law, which is the foundation of identifying all unfair competition practices. The judicial organs of China identify a large number of unfair competition practices, which are not clearly defined by legislation, through applying the article two of the Law of the People’s Republic of China which is virtually the general clause. As the general clause only offer the direction of the value judgment without providing the concrete confirming standards, so the judge should supplement the term when applying it, consequently the general clause should be recognized as the authorizations for judges to "make the law", and the core issue discussed in this article is how to guarantee the objectiveness and appropriateness of judgment standards drawn from the abstract principles.Affirming unfair competition practices through using general terms requires two essential conditions, one is the doer’s competitive behavior, the other is the illegitimacy of this behavior. The so-called competitive behavior means the behavior of striving for advantage in competition, and unfair competition practices mean violating the principle of honesty and credibility, and have used some illegitimate means in the process of striving for advantage in competition. Affirming the "illegitimate" competitive behavior needs comprehensive weighing the two aspects of the measures used in the behavior and the damages and consequences caused by the behavior, and these two aspects present a dynamic relativity which systemically influence the judgment of the illegitimate competitive behavior. The act of competition itself will bring the effect of Ramsay Rule, that is to enhance self-advantage in competition and to weaken the competitors’. So it is normal to impair competitors. Only those who are beyond normal standard may need legal regulations. Generally speaking, the more distinct the immorality of behavior is, the lower the damage standards are required; while the slighter the immorality of the behavior is, the higher the damage standards follow, so the affirmation of illegitimate competition is the result of comprehensive judgment. According to the different means of competition used by the competitors to obtain advantage in competition, general terms can be sorted into three major categories, such as improper using the advantage of other dealers in competition by inappropriate means, and sabotaging the advantage of others in competition, enhancing own advantage through inappropriate ways in competition, which can also be further divided into eight types of unfair competition in concrete segments.Improper using of others’ competitive advantages means an action that competitors improperly transfer the competitive advantages of others to themselves without due payment to grab competitive interests for themselves. In the market, commercial marks with good reputation are the rolling capital which can bring competitive advantages. Some operators obtain trading opportunities and advantages in competition through hitchhike or imitating and using others’ commercial mark instead of on their own efforts, which may involve unfair competition. Besides palming off and using others’ commercial marks, illegitimately using others’ results of operation gratis such as the unauthorized use of data base which others do not have originality judged by legal standards from intellectual law and the appearance designs unprotected by patent law and so on, are all the behaviors which use the competitive advantages of others without due endeavors.Sabotaging others’ advantages in competition is to weaken others’ advantages in competition by disturbing and damaging others’ operations in order to create the favorable conditions for prevailing in competition. These actions include disturbing competitors’ operation, intercepting competitors’ business opportunities and making unfair evaluations of competitors. Interfering with competitors can been manifested in following forms:Intentionally using own software to attack their rivals’ to making the rivals’ software unable to be downloaded, installed and operated; besides using some technical measures to forcibly add the ad links set by the doer on others’ search engines’ output pages so as to guide the net users to visit the linked websites; moreover the abuse of rights of some intellectual property rights holders to mail others with mala fides to obstruct their ordinary operations. Intercepting competitors’ business opportunities are using improper means to despoil the stable distribution channels or customer resources which are developed by competitive enterprises with a lot of human and material resources investment. Unfairly evaluating competitors means that operators devalue the competitor’s business reputation by generalized, allusive and associative evaluations instead of using direct fabrication and scatterring fake facts. These behaviors which undermine the competitive advantages of others is a pollution to the competition environment and atmosphere and further damage the competition concept, which should be regulated by the general clause of competition law.Improper increase of competitive advantage is an unfair competition practice which is mainly directed to the customers. Operators should use legitimate measures to attract customers and get the transaction opportunities. If they adopt such measures as misleading, oppression, harassment in sales promotion to trap customers, it will be a behavior which destroys the competition order and damages the interests of the consumers. In market competition, if some operators violate the various administrative norms, which set by the country in order to achieve the functions of market management, they are likely to gain more advantages in competition than other honest law-abiding operators, thus these illegal acts may be recognized as unfair competition.By observing the adjudicating rules adopted by our country’s courts when judging these cases, this dissertation reviews and analyzes the rules in judicial practices through the methods of legal analysis, comparative analysis, economic analysis and other ways, and based on which summarizes the judicial application conditions for different kinds of cases which would be used as the judging reference for the similar cases in future.