The General Clause Of Law Of China Against Unfair Competition And Its Application

Severe competition makes competition actions more and more complicated, the appearance of unfair competition actions becomes various and changeful accordingly. With the development of the economy, there have been a lot of ill competition actions that are out of the forbidden list of the current law, and even more and more ill competition actions will appear in the future. All of them breach the principle of honesty and credibility and the generally recognized business ethics, and need to be prohibited by law. While Law of the People's Republic of China Against Unfair Competition of 1993(hereafter"Law of China Against Unfair Competition") only enumerates eleven kinds of unfair competition actions, without a general clause to cover all of them, which limited the Law Against Unfair Competition to exert its effect. In order to cover all possible illegal competition actions, we must add a general clause in Law of China Against Unfair Competition.The thesis is about the general clause of Law of China Against Unfair Competition and its application. It is divided into three chapters.The first chapter introduces the conspectus of the general clause, concerned theories and comparative legislation of home and abroad, and then demonstrates that it is imperative for our legislature to add a general clause in the Law of China Against Unfair Competition.The second chapter designs the content of the general clause and the position in the law through studying the different legislation and doctrines. In the author's opinion, the general clause consists of three sections, namely, the principles of competition, the concept of unfair competition and a general legal responsibility article. Because the general clause plays a very important role in the whole law, it should be set at the visible place of General Provisions.Beginning with the indeterminacy of the general clause, the third chapter discusses the applicability problems of the general clause from theory and reality. The author suggests, when the general clause is applied into reality, Judge must try his best to reify the clause according to the concrete cases and take into account the justice ofthe result. At last, the thesis gives some cases to illustrate the application of the general clause.The creative theories of this thesis are as follows:First, on the basis of studying the domestic and oversea theories and legislative experiences about the general clause of Law Against Unfair Competition, combining with the legislative status quo of our country, the author brings forward the content of the general clause systemically, including the principle of competition, the concept of unfair competition and a general legal responsibility article.Second, the thesis summarizes the rules of the application of the general clause, for example, judge should reify the general clause through balancing of interests in accordance with the concrete cases; it is judge's obligation to give satisfying reasons in judgment; classifying the cases which judged by the general clause; Escaping to the general clause will not be permitted.In this thesis, the author persists in combining the theory with the reality, and utilizes some appropriate study methods, such as comparison, logical analysis, classifying, to make the argumentation more authentic.