On Administrative Law Enforcement Of The General Clause Of Anti-unfair Competition Law Of The PRC

The general provisions of the Anti-Unfair Competition Law in China are generally only applied by courts in the trial of civil cases.However,the emergence of new unfair competition practices in the Internet field has brought the Unfair Competition Law to unprecedented challenges,and the mere existence of the injured operator in filing civil lawsuits has been unable to effectively contain unfair competition practices to the market competition order and consumer interests.Serious damage.On February 25,2016,Article 14 of the Anti-Unfair Competition Law(Draft for Ratification)of the State Council's legal office cloths authorized for the first time the administrative authority to apply general administrative law enforcement.This means that the executive authorities can clearly list the law.The specific unfair competition acts may be dealt with,and certain types of new unfair competition practices that are not clearly defined by existing laws may also be identified and dealt with in accordance with legal principles such as fairness,integrity,and business ethics.However,there are concerns among academics and legislators about how law enforcement agencies should identify and deal with these new types of unfair competition practices,and law enforcement agencies may have excessive discretion to handle unfair competition practices using general terms.Without appropriate professional capabilities,it may also abuse the power of administrative discretion and cause adverse consequences such as “disposal.” Therefore,the“Anti-unfair Competition Law” finally promulgated in China still does not fully establish the general provisions of administrative law enforcement.The author believes that it is of positive significance to authorize administrative agencies to use general terms for administrative law enforcement.The "3Q Wars" has proved that the timely intervention of administrative agencies can effectively compensate for the inherent defects in post-causation relief of civil lawsuits.It is difficult to cover existing unfair competition acts of the law and effectively regulate new types of unfair competition.Moreover,the improvement of the quality of law enforcement personnel against unfair competition in China in recent years has also brought confidence to authorized law enforcement agencies to use general terms.Of course,granting the general terms of administrative enforcement of administrative agencies also needs to solve some issues of entity identification and procedural operations.This article adhering to the position of supporting law enforcement agencies with unfair competition to use the general terms of law enforcement and combining the administrative enforcement experience of thegeneral terms of the Fair Trading Commission Act of Taiwan in China,proposes the entity recognition and relevant supporting rules for the general provisions of administrative law enforcement.Promote China's "Anti-unfair Competition Law" to further improve.In addition to the introduction and conclusion,the article consists of the following four parts:The first part: The legitimacy and necessity of enforcement of the general provisions of administrative agencies.The "self-serving heart" and "adventurous heart" of "rational man" work together to make the market "invisible hand" voluntarily maintain the market order of effectiveness competition.The lack of “adventurism” in the market economy's activities leads to a moral decline and creates unfair competition behavior that disrupts the market competition order.Such behavior requires state intervention.The anti-unfair competition law has undergone an evolutionary path from the protection of the operator to the protection of the consumer.The market competition order and social public interest of effectiveness competition are the core legal interests of the anti-unfair competition law,and this core legal interest is presented in the concrete cases in the interests of the operators and consumers.In addition,administrative agencies can conduct law enforcement activities at a lower cost than private relief,and authorize administrative agencies to apply general provisions.Enforcement can avoid inadequate regulation of specific provisions of the Anti-Unfair Competition Law.The second part: The main legal obstacles to the enforcement of general provisions of administrative agencies.First of all,although the content of the general terms is relatively flexible,it cannot provide a clear basis for law enforcement for administrative law enforcement agencies.Secondly,China's administrative departments for industry and commerce at or above the county level are currently responsible for the enforcement of anti-unfair competition,but law enforcement officers do not have sufficient professional capacity to exercise "legislative discretion." Third,the general provisions have the power to create laws.The administrative agencies may abuse the power of administrative discretion,interfere with the operators' right to operate independently,and even breed corruption.Finally,the court has rich experience in applying general provisions in the trial of civil cases.It may be difficult to take into account administrative authorization and civil application in the design of laws,and the findings of the two may be in conflict.The third part: The determination of unfair competition behavior by the general provisions of administrative agencies.First of all,the first step should be based on the ethical rules todetermine the illegality of the competitive conduct,and the idea can draw on the civil application experience,but the administrative law enforcement should pay more attention to the analysis of the combined damage consequences.Secondly,disturbing the market order is a core legal interest.In combination with Taiwan's law enforcement experience,we sum up the criteria for the determination of disruption of the market competition order by the general administrative terms of the mainland.Taking the difference in the results of actual damage as the entry point,the act of unfair competition is divided into behavior that directly damages the behavior of the operator,directly harms consumer behavior,and directly harms the market order.The preconditions for each type of administrative regulation are different,and direct damage to the behavior of the operators requires sufficient space for civil remedies and industry self-correction.Only severely affecting market order can initiate administrative procedures.Direct damage to consumer behavior and direct damage to market order behavior should start administrative procedures when it is sufficient to influence market order.Finally,the subject of misconduct is the operator's general understanding and subjective fault.The fourth part: The relevant rules for enforcement of the general provisions of the administrative agencies are perfect.First,taking into account the law professional standards of law enforcement officers,the Administration for Industry and Commerce should be authorized to exercise discretionary powers based on general terms to determine unfair competition.In terms of specific operations,the Administration for Industry and Commerce should cooperate with the provincial Administration for Industry and Commerce to investigate and deal with cases of unfair competition across the country more efficiently,and regularly summarize applicable experience and issue implementation details.Secondly,comparing the procedures of handling cross-strait unfair competition law enforcement agencies can find that the “dual enforcement model” in the Mainland has weakened the authority of the administrative authorities for industry and commerce,and the law enforcement procedures are not as transparent as in Taiwan.It is proposed to gradually establish a law enforcement system for unfair competition that is dominated by competition law enforcement agencies.The competent department of the industry is responsible for providing professional help and auxiliary supervision.In addition,the General Administration of Industry and Commerce that exercises discretionary powers in general terms should increase the professionalism of internal personnel,increase the proportion of economics and legal professionals in leading groups,raise the threshold for academic qualifications when externally recruiting civilservants,and limit the profession to economics.Law and law.Perfecting the online platform for making decisions on penalties for public punishment will be as detailed as possible in the penalties for punishment.After accumulating law enforcement experience with certain general terms,it is recommended that the discretionary basis for the liability clause be formulated and made public so that the administrative behavior is more predictable.Finally,we created a coordination mechanism for administrative enforcement and civil litigation in general terms.The principle of civil application of unfair competition in the regulation of unfair competition is mainly based on the principle of administrative law enforcement,but the two systems independently determine the unfair competition behavior based on general terms.In the implementation of legal responsibilities,the principle of civil liability is established.It is recommended that administrative agencies set up independent accounts.If the actor's assets are insufficient in the civil execution stage,they can make up for them by paying administrative fines.In the design of the law,it is proposed to add a clause at the bottom of chapter 2 and add administrative responsibility for the clauses in Chapter 4 and authorize it to be dealt with by the Administration for Industry and Commerce in this section so that the civil provisions of the general provisions can be taken into consideration.Administrative authorization.