A Study On The Application Of General Clause Of Anti-unfair Competition Law From A Perspective Of Balancing Of Interest

As the blank certificate of appointment granted by legislators to judges, the general clause of Anti-unfair Competition Law provides a good legal basis for judges when adjudicating cases regarding new kinds of unfair competition on the Internet. The judges, however, shall fully illuminate the reasoning process in their opinions. The Internet industry of China has developed less than 20 years so far, and the Internet enterprises are constantly seeking for new business model to serve their users well. The establishment of consensus on the commercial practice of the Internet industry depends on the trial and reflection by the Internet practitioners, and thus the judge could be provided with moral resources to try new kinds of unfair competition on the Internet. Through the foregoing process, a good relationship would be established between judicature and free competition. The application of the general clause, however, has presented a over-moral trend, meaning that judges tend to use the widely accepted commercial ethics as the legal basis to try new kinds of unfair competition on the Internet and worsening the clarity of reasoning process in the judges’ opinions. In order to improve the dilemma that judges are going through, judges should turn to well explaining the principle of honesty and good faith provided by the general clause. It should be pointed out that the reflection of the over-moral application of the general clause never means judges shall not use moral standards to try cases, and that such reflection shall not be interpreted as denying the effects of sustaining competition order offered by commercial ethics. In the areas that commercial ethics have been established, judges are obliged to use commercial ethics to decide whether the competition conducts in question are fair or not. Nevertheless, the widely accepted commercial ethics need time to form. In the course of such formation, courts have no moral resources to try the cases, and even if facing this difficulty, courts shall not refuse to accept the cases. Applying the principle of honesty and good faith is a wise choice for judges when the above difficulty really happens. The essence of the principle of honesty and good faith requires a balance of interest between a plaintiff and a defendant, and a balance of interest between the parties and the society. Judges should define the parties’ interest, the consumers’ interest, the law system’s interest and the public interest and attempt to reach a conclusion by balancing all the interest mentioned above. The conclusion of balancing interest is subject to the principle of proportion including appropriate purposes, necessary means and the principle of narrow proportion. The method of such balancing interest has appeared in judicial practice, but it lacks of good interpretation and scientific steps, and by using such method well, judges could illuminate the reasoning process in order and detail. We will find that the content of balancing of interest and the principle of non-public interest, necessity and non-disturbing are substantially identical and only differ in name. The courts shall never bother to use a new name to summarize an old method, especially when the study of law interpretation has already provided them with methods to interpret law and fill legal vacuum. The innovation made by courts, however, should be praised and respected.