Evolution Of General Clause From The Perspective Of Law Operation

Focusing on the establishment of the applicable standards of Article2 of the Anti-Unfair Competition Law,the Supreme Court conducted a series of practices including judicial interpretation,guiding cases,and reviews to enhance certainty of general clause.The development of these practices shows that the standard as a means cannot achieve the purpose of certainty,instead it will create more uncertain standards.The root of the problem lies in the theoretical characteristics of the general clause itself.As a special existence between principles and rules,in addition to the three characteristics of ambiguity,complementarity and practicality,the general clause also have the technical characteristics of legal methods and the value characteristics of legal ontology,as well as the characteristics of the legitimate stability function in the daily state of the law and the communication and negotiation function in the exceptional state.These contradictive characteristics coexist in general clauses.Under the constraints of these theoretical characteristics,the academiccommunity has a long-standing debate on whether there should be and whether there has been a general clause in the anti-unfair competition law,and finally how to apply it.By examining the process of the Supreme Court's establishment of standards and the general provisions themselves,it can be found that the source of certainty of general terms may not be a typed,hard decomposition criterion,in contrast to judicial prudence formed through repeated practice.The knowledge and professional ethics,as well as the reasonable negotiation of the values of pluralistic society,are the fundamental guarantees for the moderate certainty of the general provisions.A better approach is not to pursue the absolute certainty of the general clause,but to find a balance between the certainty and uncertainty of the general clause,to moderately limit the discretion of the judge,and to maintain the openness of the legal system to the social environment and achieve the benign operation of the legal system.