Research On Legal Regulation Of Commercial Defamation

The legal regulation of commercial defamation usually starts from two perspectives,one is the perspective of competition law and the other is the perspective of the law of rights.From the perspective of competition law,commercial defamation is an unfair competition act.Because it undermines the order of competition,the law prohibits it and imposes sanctions on the actor.From the viewpoint of the law of rights,commercial defamation is an act that infringes on private rights.In order to protect and remedy rights holders,the law stipulates commercial tort liability.In essence,commercial defamation is a kind of behavior that infringes goodwill.Goodwill protection belongs to the category of intellectual property.While based on the unsatisfactory status of the process of the righting of goodwill,the unfair competition law plays an irreplaceable role in the protection of goodwill.With the protection of goodwill as the regulation target,integrating the tort law and anti-unfair competition law can avoid the conflict in the application of law,which is more conducive to the protection of goodwill holders.We should balance the goodwill against freedom of speech and public interests,when it comes to the legal regulation of commercial defamation.Through the anti-unfair competition laws and regulations,the existing regulations can be improved from the following aspects: clarifying that goodwill is the object of intellectual property,expanding the scope of application of the main body,refining the subjective elements,complementing the objective behavior,clarifying the legal liability.In addition to the introduction,the paper is divided into four parts.The first part defines the behavior of commercial defamation from different perspectives.According to the intellectual property attribution of goodwill or the current status of the righting of goodwill,we should choose the anti-unfair competition law as the regulation of commercial defamation.From the aspect of competition law,personality right law,and intellectual property law to identify commercial defamation,different conclusions can be drawn.Comparing the connotation and characteristics of commercial defamation in different perspectives helps us to explore the nature of commercial defamation.According to the concept and legal attributes,goodwill should belong to the protection of intellectual property rights.However,as the conditions for the protection of the right to goodwill are not yet complete,and the relevant civil legislation is not yet ripe,we should consider regulating thecommercial defamation by perfecting the Anti-Unfair Competition Law.The second part mainly introduces the extraterritorial experience of the legal regulation of commercial defamation.It mainly studies international conventions and domestic legislation in Britain,USA,Germany and Japan.Focusing on the value target and design of law regulation of commercial defamation.Reference to international conventions and national legislation on the subject elements,subjective requirements,objective factors,legal responsibilities and other provisions of commercial defamation,can provide a useful enlightenment for clarifying and improving the legislative orientation,regulatory framework and institutional design of the legal system of commercial defamation in China.The third part studies the balance of interests in the legal regulation of commercial defamation.Commercial defamation is an act of expression,and the law regulating this behavior should be restricted to some extent.Due to different subjects,freedom of speech is divided into commercial freedom of speech and non-commercial freedom of speech,which should be treated differently.Because of the intellectual property attributes of goodwill,the protection of goodwill also needs to consider the balance with public interests,especially the balance with consumer rights.The fourth part is about the perfection of the legal regulation of commercial defamation in China.To begin with,we will sort out and summarize the current system in China from the legislative and judicial levels.Then pointed out the deficiencies in the legislative model and the specific institutional arrangements.Finally,under the background of civil code compilation,this paper puts forward some suggestions on the legal regulation of commercial defamation in China.