Research On The Application Of General Provision Of Chinese Anti-Unfair Competition Law

Whether there is a general clause in Chinese Anti-Unfair Competition Law has always been the focus of academic controversy.The revision of the Anti-Unfair competition Law in 2018 actually recognized the status of the second general clause.However,how to apply the general clause in judicial practice has not formed an unified analysis path.For general clauses,there is a current situation that both judicial and administrative organs can apply.However,as far as universality is concerned,judicial organs occupy a large proportion.The correct application of judicial organs is of greater significance to the implementation of China's Anti-Unfair Competition Law.Therefore,as far as this paper is concerned,the author mainly focuses on the application of judicial organs and proposes a more unified application model.The author makes an empirical study of the cases in which the courts separately applied the general clause in recent years,and finds that although most of the courts cited the three elements of the ‘kelp quota' case or its variants,there are still some typical problems in the theoretical research,such as the unclear precondition,confused legal hierarchy and the tendency of ‘moralization' of the general clause.At the same time,both theorists and practitioners adhere to the three elements established by the Supreme People's Court,which weakens the interpretation and reflection of the legal text.Therefore,it is necessary to optimize the logic application of the general clause in Chinese Anti-Unfair Competition Law after studying the practices of the foreign countries represented by German,so as to provide a concrete path for our judicial authorities.This paper adopts the comparative method and focuses on the evolution of general provision of the German Anti-Unfair Competition Law.After several revisions,the 2015 German Law has completed the transformation of EU directives,formed a rigorous application system including all legal provisions,and constructed a dual-protection structure for the operators and the consumers.Methodologically,German Law has removed the ‘good custom' elements and adopted the ‘economic' perspective in the judicial activities.German Anti-Unfair Competition Law has obviously private attributes.It eliminated the interference of administration.Although it did not provide the consumers' individual litigation rights,the protection was placed at an absolute altitude in both of the general clause and the procedural protection.The application path of the general provision in German Anti-Unfair Competition Law has significant enlightenment for our country.Judicial authorities need to weaken the proportion of ‘faith principle',‘recognized business ethics' and adopt more economic analysis.In addition,through comparison,the use of general provision should be based on competitive behavior,deal with the relationship between legal text,and pay attention to the rank of rights and interests measurement.The clarity of these elements is the prerequisite for a thorough understanding of the Law and correct implementation.On the identification of the analysis elements,the author think that the three elements of the ‘kelp quota' case provides a trial idea,but with the development of the society,it is necessary to further change and keep pace with the time.In order to remedy problems between the theory and the practice,this paper studies the general provision of Chinese Anti-Unfair Competition Law and puts forward the ‘two-elements' application system,in which the analysis of the ‘unfair competitive behaviors' is the core.And then,the author puts forward the way of ‘behavior analysis' and ‘equity measurement',focusing on the comprehensive economic identification.The former uses the proportional principle which focusing on the analysis of the necessity and appropriateness of the operators' means and consequences,and pay attention to the degree.The latter,in terms of the interests measurement,firstly examines the determination of ‘right and interests' protections which included in the Constitution and Laws that regulated market competitions,secondly refers to the objective standards,such as good industry practices.What's more,it is particularly important to strengthen the consideration of the consumers' legitimate interests.Finally,the author put forward the consumer group litigation for improving the procedural protection.