The Judicial Application Of The General Clause In The Anti-Unfair Competition Law

The general clause of the Anti-Unfair Competition Law is open-ended,can make up for loopholes in the enumerated legislation of specific terms,and exert their effectiveness to prevent unfair competition through judicial application.There’s no legislationson the standards for the application of general standards and standards of unfair competition in our country for a long time,resulting in arbitrary application of general terms by the judiciary,weakening the credibility of the judiciary and detrimental to the protection of the legitimate rights and interests of the parties.Based on the case analysis,the author explores the reasons for the above problems and proposes targeted solutions to promote the gradual improvement of the judicial application of the generalclause.This article is divided into three parts:In the first part,through the study of the concept of general clause,the author analyze the different understanding of the second article of the Anti-Unfair Competition Law of the Chinese academic community,and draw the conclusion that the second article of the"Anti-Unfair Competition Law" in China is a general clause.The second part introduces the current situation of judicial application of general clause in China,and puts forward the problems existing in the judicial application ofgeneral clause in China by enumerating typical forms of cases,and the reasons of the problems.One is the abuse of general clause,such as "Wang Yuewen Case";the other is the inconsistency of the "improper" identification standards,includingthe inconsistent of the application order of the standards and the inconsistent of concrete ways of the principle of good faith.These issues are reflected in "QQ Bodyguard Case","Kelp Quota Case" and"Dianping Case".Then the author analyzes the root causes of the above problems.Regarding the abuse of general clause,on the one hand,it is caused by the fact that the law does not clearly stipulate the conditions for application of the general clause.On the other hand,judges have so insufficient knowledge of the general clausethat cannot use the principles of jurisprudence to derive the conditions for the application of general clause.The fundamental reason for the inconsistency of the criteria of "improper" is the natural ness of the general clause;the real reason is that the law does not specify the criteria for "improper".This is manifested in two aspects:one is the order between requirements is not clear,and the other is the meaning of "good faith" and "business ethics"are not clear.In the third part,the author proposes effective solutions.On the one hand,it should be clarified that theapplication of general clause is inferior to the specific clauses,to prevent abuse of the general clauses.On the other hand,drawing on the "three essentials" model established in the "Kelp Quota Case",the author could clarify the criterion of "improper",and from two aspects to refine:one is clarifyingthe application of the order ofthe "damage"and "violate the principle of good faith";the other isspecifyingthe "good faith principle".To increase the certainty of the general clause and balance itsflexibility so that they can prevent the unfair competitionsmore effectively by judicial applying,and ensure that market players can reasonably expect their own actions so as to aligning the freedom of competition with the fairness of competition andto achieve the ultimate goal of revitalizing the market.