The General Provisions Of The Anti-unfair Competition Law

General clause of anti-unfair competition law is a general or abstract norms which regulate the enforcement agencies or the courts to affirm the other unfair competitions which are beyond the concrete example of legal. It has significant meaning in anti-unfair competition law. Against its own inherent deficiencies of the law, general clause of the law can make up for this loopholes, which provide a tailor-made standard for various uncertainties unfair acts and optimize the criteria. General clause reveals the common points in all acts of unfair competition. Anti-unfair competition law can timely prevent the unfair acts which does not expressly provided in the law through the use of general clause. It is precisely because of this function of general clause, so that anti-unfair competition law has become flexible and enhance its applicability, and maintain the stability and authority of anti-unfair competition law. But certainly when we affirm the positive effects of general clause, we should be fully aware of its limitations. Only when we have enough clear understanding of its defects, better implement we can.Among general clauses of anti-unfair competition laws, the most representative in the world is the German legislation Anti-Unfair Competition Law, Germany in 1909, general clause of the act has been referred as the terms of the emperor. Switzerland, the United States, Greece, Sweden, Hungary have general clause in anti-unfair competition law. The international legislation relating to unfair competition also contain general clauses. Such as section two of article 10 of Paris Convention, article 1 of Intellectual Property Organization Model Anti-Unfair Competition Clause. It can be seen that general clause of anti-unfair competition law has been widely applied. Through the study of general clause of anti-unfair competition law of the legislation from those countries, the law and requirements of general clause can be summarized as: (1) General clause shall have general characteristics of the regulations; (2) It should respond to law implement; (3) It should reflect a certain degree of tolerance; (4) It should be able to demonstrate the values of business ethics.The specificity of general clause determines careful application, it is necessary to comply with certain requirements and methods. The basic requirements of applying general clause are: to implement the legislative purpose of anti-unfair competition law, to grasp its core principles, namely, good faith and principle of morality, to weigh the pros and cons to decide if to apply general clause of the pros and cons of an act in the case of both. Because of abstract and general features of general clause, it must be applied in specific cases, the specific process can be adopted in reasoning or explanation, can also be adopted in case classified. Identification at a specific act of unfair competition in the framework of general clause should analyze the four elements of the act, such as the main body, subjectivity, object, objective aspect. If the act accord with the elements, it should be limited by general clause. Taking into account uncertainty of general clause, we must set some limitations in its application. Only under the condition that there is no clear clause listed about a specific competition, general clause can be applied. Only when its negative side is reduced maximally, general clause can be played out its due performance.Theoretical study is designed for the practical use. How to improve general clause of Chinese Anti-Unfair Competition Law and make some benefits for its development is the real purpose of this article. General clause is very important, but it still has no specific status in the law of our country. There are a number of controversies in theory and practical fields about the existence of general clause of Chinese Anti-Unfair Competition Law in our country. The problems reflected in the different views on Article 2. Whether or not this article is a general clause, there are three main theoretical perspectives: First, doctrine theory; Second, general clause theory; Third, limit general clause theory. In practice fields, all levels of courts in China have affirmed some unfair competitions based on Chinese Anti-Unfair Competition Law in section 2 beyond express prohibition constitutes, but it is difficult to consider clearly the article as general clause. Therefore, the author hold that doesn't exist a true general clause in Chinese Anti-Unfair Competition Law and a limited general clause exists. Therefore, we should improve the relevant provisions of general clause when Chinese Anti-Unfair Competition Law is amended. The author suggest that improvement of general clause in Chinese Anti-Unfair Competition Law can be carried out in five aspects: First, emphasize that legislative purpose of Chinese Anti-Unfair Competition Law is fully embodied in general clause. Second, reasonably determine the scope of application of general clause. Third, reasonable define limits of authority of administrative agency and judiciary to apply general clause. Fourth, set up general responsibility system corresponding general clause. Fifth, scientifically design the specific provisions of general clause.