The Analysis Of The Case Of The Unfair Competition Of Kelp Quota

With the development of economy, the commercial chance has played an important role, it has become the main goal of market subject competition. Along with the profit-orientation of market subject, the phenomenon occurs occasionally that snatching others business chances. Only the behavior of the special identity who is directors or senior manager usurps the commercial chance of company is stipulated in Company Law. However it’s difficult to impute the behavior of person who obtains commercial chance of company without special identity. The current Anti-Unfair Competition Law has not been modified after it was formulated in 1993. Chinese economy has obtained great development and the market environment has changed greatly in the past 20 years. The stability of written law and changeability of society lead to difficult maintaining market fair competition order. Through the form of issued an instructional case by the most important judicial organ, Supreme Court, it could provide solution for applying general clause in concrete case when omitting of legal rules. Case is special, but experience is valuable.The case of the unfair competition of kelp quota is used as model by this paper. In this case, the defendant Ma Daqing in the situation without infringing business secret or violating competitive obligation, assisted Sheng Ke Da Cheng Company, founded by himself, in snatching the commercial chance which belonged to Shandong Food Company before. This case from the end of first instance to the retrial lasted four years and set off the discussion in theory circle and practice circle, there are the following disputed points: Firstly, what nature the commercial chance of exporting kelp to Japan belongs to and who the benefit belongs to. Secondly, the defendant Ma Daqing assisted other company which has a competitive relationship by using the skill learned from the original company, but he didn’t violate the forbidden competition obligation or infringe trade secret, whether this behavior can be considered as unfair competition. Thirdly, whether the defendant’s behavior violates second article in current Anti-Unfair Competition Law which establish competitor’s legal right.According to dispute focus above, this text thinks: Commercial chance is not a legal right, it also couldn’t be a right because of its uncertainty. But commercial chance has already become the main goal of market body in competition, because of its huge benefit. Commercial chance should be protected by law. Moreover, according to the law of our country, the good faith and common business ethics are the judgment of unfair competitive behavior. Business ethics is different from life morality, market competition corpus couldn’t be excoriated by life morality, or there will be inappropriate expanding the scope of the unfair competition. At last, with the development of economy and the progress of science, it’s impossible to list all forms of unfair competitive behavior in specific. However the second article in current Anti-Unfair Competition Law is still in dispute when it’s used as general clause, it’s imperative to consummate this article. This paper analyses the case of the unfair competition of kelp quota, present some modified and suitable suggestions about the second article in current Anti-Unfair Competition Law to found a general clause in a real sense, which could play complement function in judicial practice if the written law were not suitable.