Rethink Of Judicial Application Of The General Clause In Anti-unfair Competition Law

There are three problems about judicial application of the general clause of anti-unfair competition law:first,escape to the general clause;second,utilizing the result of damage to reversely pursue the irrational competitions;third,ignoring the interests of consumers.Further analyze the cause of the three problems,consider the first attributed reason is that the general conditions apply the legitimacy judge with uncertain legitimacy.On the other hand,the more profound reason of above-mentioned three problems is that,judge and lawyer infinitely enlarge competitive relation of anti-unfair competition law and mix angles of the lawmaking and the interpretation,which result in the general clause become an embracive black hole,taking in all infringement acts.Confronting with the abuse of general conditions,some scholars try to base on the improvement of invalidity to restrict the abuse.There is some effect of this view.But only the presentation of the current problem is attached attention.This paper reviews the general clause,indicates that the general clause are the practice of barbarously creating law by the court in fact,are the product of opportunism.Respect basic legal principle and basic idea of rule of law.Give play to judge's discretionary power to unavailable-protected benefit,which is restricted in Statutory Principle of intellectual property under the extreme case,the intellectual property judge should adhere to right sight discretion of utilitarianism.Only in the region of civil law the judicial evidence can be found.Seen form the development of anti-unfair competition law,infringement constitution of tort law and current judicial practice status,it's available for the judge to seek judicial evidence from civil law in order to realize fairness and justice.