Research On The Judicial Standards Of Commercial Defamation

The emergence and prevalence of commercial defamation is closely related to the fierce market competition.By attacking the business reputation of the opponents to seize market share and obtain business opportunities.Regulations of commercial defamation are designed to protect the legal rights and interests of others and the stability of the market order.When the individuals can not protect themselves and the invisible hand of the market can not be self regulating,appealing to the court become an effective relief way.The dissertation puts the research perspective into the judicial process of the court.On the basis of grasping the original intention of the legislators,the dissertation comprehensively analyzes the standards of the court in determining the applicable condition of commercial defamation,and explores the existing problems in order to put forward the corresponding measures.Specifically,first of all,it depends on whether the subject is qualified,that is,the concept of operators in the provisions of Article 2 whether it can meet the requirements of Article 14 which the subject is limited to the operator.Next,by finding out details in the judicial cognizance,it is found that the anti-unfair competition law only provides the principles of commercial defamation and does not specify the standards of the specific behaviors and consequences.It is difficult to identify the facts of the case and lack of operability.The following difficulties exist in the fact.For example,what are means of "fabricated,scattered" in the provisions of Article 14? What does "false facts" include? What are the specific criteria for "damaging commercial reputation and commodity reputation" ? How to deal with fault psychology? How to allocate the burden of proof can be able to protect the legal justice of the procedure? Different courts have different thoughts.Finally,does the Article 2 act as a general term in the field of commercial defamation? How to ensure the exercise of discretion properly and at the same time play a fallback role? All these need to be analyzed from the legal dimension.This dissertation adopts sociological empirical research method,selecting a large number of authentic judgement documents to get valid data and to summarize the data in order to demonstrate features of judicial practice in the process of commercial defamation.On the basis of practical investigation,this paper explores the practical problems existing in the process of identification from the perspective of subject,behavior and consequence,and finally providing the qualified strategies and advices to improve the judicial determination of commercial defamation.In addition to the introduction and conclusion,the dissertation is divided into three parts:The first part is the practical investigations of commercial defamation-based on 79 judgments.According to the investigation of all documents,there are two modules to interpret the situation of commercial defamation from the relationship between the plaintiff and the defendant and the basic situation of court judgments.Moreover,this paper focuses on the analysis of the reasons for the court in order to sum up the general rules and characteristics of identification.The second part is to analyze the problems of the judicial determination of commercial defamation.This section discusses the embedded detailed questions and analyzes these reasons in details.Firstly,discussing the main body identity and subjective fault,we should consider the problems encountered by the court.Secondly,the court is puzzled about the explanation of the concrete nouns when fabricating and speeding false facts as behavioral elements.Thirdly,the consequences of the commercial defamation as the essential elements,what kinds of problems the court encountered make it difficult to determine the formation of damages.Last but not the least,this paper discusses why the deterministic process of commercial defamation is still barely satisfactory with the existence of the good general terms.The third part focuses on the countermeasures and suggestions to improve the judicial determination of commercial defamation.On the basis of the above analysis,the following suggestions are provided.First of all,in order to meet the needs of the reality,the article expands the connotation of competitors.The article makes a distinction between the general tort and commercial defamation by the operators and subjective elements.Secondly,it is necessary to clearly define the content of false fact and establish the rules of fabricating and spreading.Then,to see the consequences of damage and grasp the nature of its infringement rights and the standard of the result.At last,on the basis of the legislative intentions,it is essential to achieve a balance between free competition and judicial intervention.