Studies On The Judicial Application Of The General Clause In The China Anti Unfair Competition Law

February 2014, the Supreme Court made the final judgment on the unfair competition dispute between Tencent and Qihoo 360. Tencent’s claims were based on the general clause of Anti-Unfair Competition Law, and finally won the case in accordance with such clause. In fact, in 2010, the "Kelp Quota" case(between Shandong Food Company and Ma Daqing) attracted considerable attention during the first instance, the second trial to the retrial procedure for the reason that it talked about issues on the application of the general clause of Anti-Unfair Competition Law and whether the commercial opportunity may obtain protect from Anti-Unfair Competition Law. In April 2011, the Supreme Court announced the annual report of the intellectual property rights case(2010) and analyzed the "Kelp Quota" case in particular, which provides guidance for handling similar cases.Anti-Unfair Competition Law(1993) had listed out 11 kinds of unfair competition conducts in Chapter Two. However, the market situation is changing, and many new types of market competition conducts appeared. To some extent, the unfair competition conducts regulated in Chapter Two have not been consistent with the reality, and thus, a large number of new types of disputes can only be dealt with by the general clause of Anti-Unfair Competition Law. At the same time, it also became a highly concerned topic in the judicial practice on the uncertainty in the application of the general clause, the integrity of the applicable rules and the application of the boundary.This paper uses case analysis, literature study and comparative analysis to explore the applicable rules, the applicable border as well as the applicable methods of general clause.