Research On The Confusion Of The Term "Business Operator" In The Anti-unfair Competition Law

The "Anti-Unfair Competition Law" is an important legal system for safeguarding the order of market economy and ensuring fair competition.Since 1993,it has been promulgated for more than twenty years.In recent years,with the extensive and profound changes happened in market competition of China,the function of "Anti-Unfair Competition Law" for maintain the market fair competition order has faced with many difficulties.There are a series of defects with the term"business operator".Due to the ambiguity of the provision,the judicial departments always have different understanding of the "business operator".Eventually,some unfair competitive behaviors seriously disrupt the market order,can’t be regulated by the "Anti-Unfair Competition Law",which not only can’t effectively protect the legitimate business operators and consumers,but also hinder the development of market economy.What is the relationship between the "business operator" in the Anti-Unfair Competition Law and the other legal subjects such as merchant and civil subject?Whether we should continue to use the term of "business operator"?How to explain the connotation of "business operator"?Scholars referred to these questions as the confusion of "business operator".Based on the analysis of the fundamental subject theory of economic law and the collection of realistic resources of cracking the dilemma of "business operator",this paper finally puts forward practical approach to address these issues.Based on the above,this paper mainly contains five chapters.The first chapter is mainly about the concept of "business operator" in the"Anti-Unfair Competition Law".This chapter emphatically points out the defects of this concept both at the legislative level and the jurisdiction level.This chapter also introduces the main viewpoint of scholars.On understanding of "business operator",the scholars divided into three parties.For the sake of developing specific proposals,this chapter analyses the main reasons of the dilemma we are now faced with.The second chapter takes the legal subject theory as the starting point,and tries to clarify the role attribute of the operator as the subject of economic law.The particularity of the legal subject lies only in its different legal attributes under different legal regulations.Although there are similarities among "business operator",the civil subject,the businessmen,there are also some essential differences among them.Only when we clarify the relationship between "business operator" and other legal subjects,can we understand the concept of "business operator" clearly.The third chapter focuses on the understanding of the concept of "business operator" in our legislation,law enforcement and judicial practice.These practices provide a reference for law amendment.Based on the above chapters,the forth chapter explores whether we should continue to use the concept of unfair competitive subject.Analyzing the legal attribute of "Anti-Unfair Competition Law",it is an ideal choice of abandoning the term of subject.But any legislative choice should adapt to the reality of our country.Considering the national conditions,it’s a practical way to formulate the subject concept in special provision.The fifth chapter puts forward concrete approaches to solve the dilemma.Since the extent of amending "Anti-Unfair Competition Law" is not clearly,this paper tries to provide two practical approaches.On one hand,we can continue to use "business operator",but we should reinterpreted the concept.On the other hand,we can use"competitor" instead of "business operator" as the concept of unfair competitive subject.