Research On Legislative Defects And Perfection Of Anti Unfair Competition Law In China

In the market economy of our country established period,in ensuring the implementation of "play an important role in the healthy development of the good operation of the economic order and the economic activities in the promulgation and anti unfair competition law",has become an important legal guarantee for the healthy and sustainable development of our country at the present stage of market economy.However,with the continuous development of society and economic activity has shown new features,the "Anti Unfair Competition Law" in the legislative content,general terms,subject scope,legal liability definition and legal effectiveness,has been difficult to meet the demands of economic development,has been unable to many new acts of unfair competition play a good constraint and its regulatory effect,is increasingly revealing the legislative defects and problems has been sustained attention,the government of the people and the society.In November 4,2017,the Twelfth National People’s Congress of the thirtieth meeting of the Standing Committee revised by the "anti unfair competition law,and by the People’s Republic of China Decree No.seventy-seventh of the president announced,implemented since January 1,2018.Although the law has been greatly adjusted,there are still some defects or problems in the old law.The new situation in the domestic acts of unfair competition in various fields continuously penetration,how to effectively regulate the order of the market economy,how to effectively protect the legitimate rights and interests of the participants of economic activities,how to promote our healthy development of various economic activities,the root cause lies in the speed of the " anti unfair competition law legislation.Based on this,this paper selects the "anti unfair competition law as the research object,the legislative status and defects and Countermeasures of systematic and comprehensive analysis,in order to establish our country to adapt to the new period of China’s economic development requirements of the" Anti Unfair Competition Law and the legal system to provide some reference suggestions.The main contents and conclusions of this paper are as follows:The first chapter mainly introduces the basic concept and characteristics of unfair competition,that the illegal infringement,harmfulness,diversity,concealment,destruction of six characteristics;summarizes the legislative mode of "Anti Unfair Competition Law",that the legislative mode of foreign competition are mainly scattered legislation pattern,to as the representative of the United States to Germany on behalf of the two parallel legislative model,respectively in China’s Taiwan region as a typical representative of the merger legislation mode,while China’s new "Anti Unfair Competition Law" started by the mixed legislation mode in order to legislative mode;that the positive role of China "Anti Unfair Competition Law" mainly to meet the development needs of China’s market economy,regulating economic activity order,our country perfect three aspects of legal system of China;analysis of China’s "Anti Unfair Competition Law " The legislative purpose and basic principles,that it is the legislative purpose in order to ensure the healthy development of the socialist market economy,encourage and protect fair competition,prohibit unfair competition,protect the legitimate rights and interests of operators and consumers,including the basic principles of voluntary,equality,fairness,honesty and abide by the business ethics.The second chapter mainly discusses the legislative status quo of China’s "Anti Unfair Competition Law",a brief analysis of the formulation and implementation of legislation,the making process of development after the implementation,focusing on China’s new "Anti Unfair Competition Law" the revision highlights,including perfecting the acts of unfair competition judgment principle,supplement on confusion behavior that the rules and re defined on commercial bribery rules,improve on the false propaganda behavior rules,modify the terms of prize sale behavior rules,fixed on the commercial defamation,fine-tuning the identification of the rules about trade secret protection,the relevant provisions of the new on the Internet unfair competition provisions,delete five kinds of restrictions on competition and monopoly,increase the unfair competitors liability for damages The means and measures of supervision and inspection have been strengthened.The third chapter analyzes the new "anti unfair competition law legislation defects,that there are defects in the general provisions of the legislation,mainly in the absence of the corresponding legal liability provisions,is very limited,only limited general terms;3 there are defects in terms of the Internet,mainly for the illegal elements,setting machine the Internet is not conducive to the diversified services,controversial,the legitimacy of the technical means to restrict the legitimate third party product or service compatibility problems,competition rules are too abstract;the means of evidence legislation defect,mainly as a means of investigating and collecting evidence is weak,is not conducive to the existence of evidence acquisition restrictions,do not cooperate with the lack of proper behavior constraint etc..The fourth chapter studies in Germany and Japan in the "Anti Unfair Competition Law in legislation,that the general clause explains the acts of unfair competition,and given the power of law enforcement at all levels of the judiciary enough,so that it can be in accordance with the general terms and conditions listed in the law and has a lot of damage to legitimate behavior the competition for effective treatment.The general terms play an important role in the implementation of German anti law,and it is the imperial clause in the whole German competition legislation for economic activities.The legislative purpose is very clear,that is to prevent competition immoral behavior,guarantee a fair trading standards;Japan’s " Anti Unfair Competition Law under the tutelage of Germany,also joined the American elements,the civil liability and criminal responsibility by using the respective legislation mode,legislation clearly applicable strong.Summary of Germany and Japan to China in the "Anti Unfair Competition Law" Legislation Enlightenment,that the German experience can be regarded as a general clause,except for the provisions of the two aspects;inspiration of Japanese experience is mainly reflected in the civil legislation,supplemented by the surface characteristics of the criminal.The fifth chapter discusses the perfection of the "Anti Unfair Competition Law Countermeasures and suggestions in view of the main problems,put forward to perfect the legislation in general terms,that according to China’s actual situation,it is necessary to establish the general terms of honesty and credit as the core of the acts of unfair competition to take the way of summarization and enumeration,set out terms,refinement of the" Anti Unfair Competition Law "second paragraph second;in terms of Internet legislation,forming various legal provisions with the use of pattern to make up for the limits of cohesion,attach importance to the Internet field of Internet terms lack of consumer protection,use of the terms should be as clear as possible acts of unfair competition,the provisions of article four of the respective the regulation should be;in terms of the legislation of evidence means,should continue to refine and supplement means of evidence,evidence obtained and taken outside The combination of internal direct evidence and the educational work of the respondents,accumulating experience in the practice of law enforcement and evidence collection,and promoting the improvement of the anti unfair competition law.