Analysis Of The Applicable Boundary Of General Clause Of Anti-unfair Competition Law

With the rapid development of the Internet economy,market competition behavior is constantly updated.The emergence of endless market competition activities not only activates the market economy,but also brings some challenges to the fair market order,especially in the emerging digital economy-related market areas,the issue of the legitimacy of competition behavior is more prominent,anti-unfair competition law As a market regulation law,its importance has become increasingly apparent.The general clause of the Anti-Unfair Competition Law are the most important legal basis for resolving new types of competition.Its application issues have aroused widespread and lasting concern in the theoretical and academic circles.Is an important issue that needs to be studied now.The anti-unfair competition law is designed to protect the rights and interests of competitors and the market order.The legal systems of different countries are different from their competition environments.The legislative principles,value basis,and general clause of the anti-unfair competition law also differ.Civil law countries have a relatively abstract concept of protecting objects against unfair competition laws,and take the maintenance of a fair and just market competition environment as the legislative value.The anti-unfair competition laws and regulations in the Anglo-American legal system mainly include monopolistic behavior and infringement of trade secrets,but the competition principles and value basis reflected in judicial precedents have comparative law for the study of the general clause of anti-unfair competition law in China.The significance of reference.The scope of the general clause of China's anti-unfair competition law is mainly manifested in the principle of good faith and recognized business ethics,in which the principle of good faith is manifested through the recognized business ethics.In order to prevent the generalization of morality as an extra-legal factor,the recognized standard of business ethics should be objective and essential.This is the objective premise of the boundary of the general clause of the Unfair Competition Law.By analyzing the case of "Dian P v.Baidu" and the related cases of commercialized rights and interests involving text roles and names,this article believes that according to the theory of incentive innovation and market failure theory,competitors' grasping and imitation of business results with commercial value are reaching When threatening theincome base of investors 'achievements,the general clause of the Anti-Unfair Competition Law should additionally protect such business results;in addition,the general clause of the Anti-Unfair Competition Law should also protect the commercialized rights and interests with the function of identifying the source.Combining with the typical cases involving intellectual property rights and unfair competition such as the "sports event live broadcast" case and the "Jin Yong v.Jiangnan" case that have attracted wide attention in judicial practice,this article believes that the application of the general clause of the anti-unfair competition law should have certain limits and Restrictions,only when the various interpretation paths of the specialized law that exhausts authority are exhausted and there is still no way to evaluate the legitimacy of a certain act,there is room for application of the anti-unfair competition law;in the process of applying the anti-unfair competition law,Only for acts not covered by the types of anti-unfair competition laws,there is room for applying the general clause of anti-unfair competition laws.Combined with the analysis of the application and limitations of the general clause of the Anti-Unfair Competition Law,the criteria for determining the general clause can be objectively translated into competitors 'imitation of freedom,increased market transparency,investments made by operators to gain competitive advantage,consumers The four elements of freedom of access to information.Regarding the determination of applying the general clause of the Anti-Unfair Competition Law to judge the legitimacy of competition,under the value foundation of China 's free competition and modern competition theory,the application of general clause should follow the identification of the balance of interests: when considering the industry in which the competition is located Based on the characteristics and the competitive environment,combining the principle of proportionality to balance the negative effects and positive effects of competitive behavior,only when the negative effects of competitive behavior are significantly greater than the positive effects on the competitive environment and consumers,can the general terms apply The room for unfair competition.Bringing the four-factor identification standard of the general clause of the anti-unfair competition law into the idea of balancing the interests,and analyzing the legitimacy of the competitive behavior,under this path,the application boundary of the general clause of the anti-unfair competition law is clarified.