Research On The Application Of Commercial Moral Standards In Anti-Unfair Competition Law

Commercial moral is an important part of the principled clause of China's anti-unfair competition law.It represents a moral standard based on the market economy and is different from the general social morality.This standard thoroughly reveals in anti-unfair competition law,restricts and guides all competition behaviors,and aims to build a good competitive order and a healthy market atmosphere.According to the legislation of China's anti-unfair competition law,the second chapter restricts various and specific unfair competition behaviors,and other new types of unfair competition behaviors need to be judged and regulated according to Commercial moral standards.However,in practice,when judges decide on specific unfair competition behaviors,they often use this standard as a basis.In general,if the conduct can be clearly defined and falls within the scope of the second chapter of the Act,then the standard does not need to be applied.However,when the conduct is controversial and it is difficult to conduct a comprehensive evaluation based on specific provisions,the standard still has its place.As a relatively abstract concept,the ethical standards of business have not yet been defined in the competition law,and it has relatively large amount of flexibility.This kind of characteristic has two aspects.First,it improves the delay of the anti-unfair competition law,and can cope with the frequent occurrence of new types of unfair competition behavior.Second,the application of the standard in practice is difficult.Excessively lenient or excessively harsh use of the standard may either result in the abuse of the standard practically or cause some unfair competition to be difficult to identify.How to use this standard reasonably becomes a difficult problem in practice.According to the general interpretation of the standard of Commercial moral,there is a difference between the connotation of the standard and the interpretation of the anti-unfair competition law.According to the connotation of the standard,it is more rational and economical,and it is more able to reflect the attributes of enlightened self-interest.From the perspective of anti-unfair competition law,the standard is the legalization of morality,and its application is premised on the existence of direct or indirect competition.Due to the accumulation of time,the standard has a certain stability in the traditional field.However,the standard is difficult to form in a short term in emerging industries.In any case,the competitive behavior is adjusted by the standard.This stand is becoming an important benchmark for judging the legitimacy of competitive behavior.According to the application of this standard in China's anti-unfair competition law practice,in general,it plays an important role in practice whether in the traditional competition field or the new competition field.This standard is often applied in the former and is independently applicable in the latter.In general,there are three main rules for the standardization in practice:The standards applied in accordance with the principle of good faith,the specific applicable standards of industry practices,and the specific standards applicable to the rules created by judges.In practice,the application of the standard is faced with difficulties.First,the judicial application of the standard is difficult to avoid pragmatic tendencies.In some cases,although judges can use the specific provisions in Chapter 2 to identify unfair competition,they still make decisions based on the Commercial moral of Article 2.This pragmatic approach often leads to the the application of law turning to general terms.What's more,there are insufficient reasons for judging the standard in judicial decisions.Most of the judgments on the standard part are very vague,and there is no reason and argument for how to conclude that the act violates the standard based on the facts of the case or why it should be applied.Finally,there are deficiencies in the application of the standard.In order to apply the principle of honesty,how to position the relationship between the standard and the principle of good faith becomes a question worth debating.Due to the complexity of the nature of industry practices,specifying industry practices inevitably has certain limitations.The creation of rules by judges cannot avoid the hidden dangers caused by the judge's personal subjective consciousness and discretion.To improve the application of this standard in anti-unfair competition practice,the first thing is to make clear of the applicable boundary and all influencing factors of the standard.The application of this standard in the anti-unfair competition law is premised on the existence of competition.In the process of application,it is still necessary to give due consideration to factors such as consumer rights,equality principles and market efficiency standards.Necessarily,strengthen the reasoning and argumentation of judges in the judgment documents,so that their arguments are sufficient and reasonable.What's more,improve the rules that apply to the standard.We need to take advantage of the inherent commonalities between the two through reasonable use of the principle of honesty and credit to carry out the specific application,Clearly apply the rules that are specific to the industry practice so as not to directly equate the two.When it comes to the necessary restrictions on the creation of rules for judges,judges should meet the requirements of the anti-unfair competition law with enough case groups to support,and it is essential that the judges have access to necessary argument analysis.Only by strictly grasping the identification and application of commercial moral standards from all aspects,can we more effectively take the most of the standard in practice and better regulate various types of unfair competition.