Study On The General Clause Of China Unfair Competition Act Law And It’s Legislation Perfection

The world is constantly changing and developing, and the competition in the market economy also keeps changing all the time. As a result, there will be a lot of new types of unfair competition acts that have not appeared before. And China’s "Anti Unfair Competition Law" since the promulgation of the 90’s has not been modified, the legal norms of unfair competition behavior is also relatively old, has not adapted to the rapid development of China’s economic situation. The specific examples of unfair competition in Anti Unfair Competition Law can not be able to cover all types of unfair competition, therefore, in practice, the court will take other measures to solve this problem. For example, citing the second clause of the law, to deal with the new type of unfair competition emerging in the developing market economy. So we can not help but think about what is the role of the second clause in the Anti Unfair Competition Law? And what is the relationship with the general terms of the other anti unfair competition law in the world. Therefore, there has been a controversy and discussion on whether there is a general clause in the Anti Unfair Competition Law of our country. In the February of this year, the Legislative Affairs Office of the State Council promulgated the "people’s Republic of China on Anti Unfair Competition Law(Revised Draft)"(hereinafter referred to as the revised draft), and compare this revised draft and the old law, there are relatively large changes. A few modifications in the revised version cause our attention,especially a clause that can disclose ins and outs. Therefore, this article makes a concrete analysis on the general terms and conditions, and studies the general provisions of the anti unfair competition law in our country. We can through the study of the general clause in the Anti Unfair Competition Law to solve the problem of it’s perfection, and analysis the modify in the revised version. Finally we can obtains some opinions and conclusions on the basis of the revised draft to improve the application of general provisions.The first part mainly studies the basic problems of general clauses. Firstly, in this article introduces the revise of general clause in the revised draft. Secondly, the article through the analysis of the concept, characteristic and function of general clause, making a basic problem solving for the following analysis. Finally, Finally, through the study of the advantages and disadvantages of the general terms and conditions, it is concluded that China’s Anti Unfair Competition Law needs the general clause in our country.The second part of this article introduces the argument in the academic world about the existence of the general clause in Anti Unfair Competition Law. Then, through the fact that the second clause was often be used as legal basis in judicial practice indicates that the judicial practice is the affirmation of the existence of general provisions. Finally, according to the general provisions of application in judicial practice that the second clause in Anti Unfair Competition belongs to the limited general clause. And expounds its applicable conditions and restrictions.The third part is the analysis of the general provisions of the legislation of foreign countries, which are used for reference and then through these favorable reference to our existing general provisions of a legislative inspiration. Select a more suitable for China’s national conditions of the general provisions of the legislative model, to imitate their learning, and then solve the existing law in general terms related to several major issues, for example, some of the specific provisions of the provisions should be how to understand as well as how general provisions on the protection of consumers’ interests should be included in the design of the law. Finally, combined with the above analysis to compare the revised draft, comes to a conclusion that the revised draft on the general terms of the revised direction is reasonable, and then affirms that the revised draft is indeed developing towards a progressive direction. The amendments to the general provision in the revised draft meets the requirement of the market economy of our country to the law of anti unfair competition. In the end of the article provides a simple solution to the application of this kind of modification, to help the application of the general provision of the revised draft can be more reasonable and perfect.