Research On The Criteria For The Determination Of Competitive Relationship In Unfair Competition

The rapid development of the economy has brought about the problem of diversification of unfair competition behaviors.There are only seven kinds of specific unfair competition behaviors in Chapter 2 of the Anti-Unfair Competition Law,which cannot meet the needs of regulating unfair competition behaviors.Therefore,the courts are increasingly applying Article 2 to identify unfair competition behaviors,and in the process of identification,the competitive relationship is deemed as a precondition,which also creates different interpretation methods and criteria for determination of competitive relationship.The author attempts to analyze the connotation of competitive relationship,evaluate the role of competitive relationship in determining unfair competition,and finally provide feasible and effective suggestions for determining competitive relationship when applying the Anti-Unfair Competition Law.Part ? introduces the development of the criteria for the determination of competitive relationship,which can be divided into two aspects: one is to define the meaning of competitive relationship,another is to evaluate the role of competitive relationship.Both aspects of the criteria have shown an increasingly loose trend.Part ? firstly criticizes the increasingly loose criteria for the determination of competitive relationship from the perspective of legal interpretation,and then demonstrates the necessity of competitive relationship in the determination of unfair competition.Unfair competition is first of all “competitive behavior”,whose feature is competing for trading opportunities.This determines that the core of competitive behavior is the competitive relationship of the operators competing for trading opportunities.Secondly,through the comparative analysis of two cases,it is proved that the competitive relationship can clarify the scope of adjustment of the Anti-Unfair Competition Law.Part ? further analyzes the manifestation of the competitive relationship in the unfair competition behaviors of Chapter 2 and Article 2,and then expounds the specific expressions of “competing for trading opportunities” when applying Article 2.On the basis of this,the competitive relationship can be divided into two categories: 1)competitive relationship due to the replaceable goods or services provided by operators;2)competitive relationship arising from the fact that consumers objectively have only one choice of operator.Part ? makes recommendations on the determination of competitive relationship when applying the Anti-Unfair Competition Law.Firstly,in judicial practice,the competitive relationship should be regarded as the precondition for determining unfair competition,and from the perspective of competing for trading opportunities,it is tested whether there are competitive relationship between operators,and then the anti-unfair competition law or other departmental laws are applied.On the other hand,it is clarified that there is no competitive relationship between the operators when one party obtains a trading opportunity and the other party does not necessarily lose the corresponding trading opportunity.Secondly,In the legislation,appropriate adjustments should be made to the provisions of “commercial defame” and“infringement of trade secrets”.