Study On The Justice Application Of General Terms In Anti-unfair Competition Law

With the continuous development of market economy in China,the number of cases of unfair competition acts also shows a trend of continuous climbing.By searching for cases of unfair competition acts in China judgment documents network,we can see that the number of cases involving unfair competition is increasing day by day,especially in recent years,the new network unfair competition act makes the specific provisions of the Anti-unfair Competition Law can not be regulated,which makes the number of cases subject to general clause adjudication large.The existence of these problems restricts the judicial application of the general provisions of anti-unfair competition law.In the first part,the author explains the definition,function and necessity of the general provisions of the anti-unfair competition law In the definition,it is in accordance with the specific judicial practice of our country to define the general provisions of anti-unfair competition law as legal rules.The second part discusses the current situation and existing problems of the judicial application of the general provisions of the anti-unfair competition law in China,including the normative interpretation of the general provisions and the existing problems: first,the normative interpretation of the newly revised general provisions of the anti-unfair competition law,second,the problems in the judicial application of the general provisions,mainly manifested in the conclusion of the competition relationship is too broad,according to the good faith principle and business ethics to identify defects,based on the market effect as the standard of the application of defects,lack of the types of general provisions.The third part discusses the experience of foreign countries in the judicial application of general clauses,such as German courts will clarify the logical starting point of the application of general clauses,judges will integrate the case group when applying general clauses,American practical circles will reach a consensus of no escape to general clauses,American judges will apply the litigation injunction system to the practical cases of general clauses,in order to prevent the operator party may produce huge losses,these good experiences are worthy of our country to learn from.The fourth part is the perfect suggestion in view of the problems existing in the judicial practice of the second part,which is the key to ensure the application of the general provisions in the administration of justice.First of all,the criteria for the determination of competitive relations should be determined from the aspect of actual business behavior,that is,whether there is a direct or indirect competition relationship,when there is no obvious direct or indirect competition relationship,and then from the aspect of competitive interest,mainly whether there is malicious competition interest;secondly,in judicial practice,the principle of good faith and commercial ethics should be improved Thirdly,we should perfect the judgment standard of market effect,that is,we should not only consider the element of business proper mode of the operator,but also consider the competition demand,consumer interest and public interest of competitors.Finally,in order to speed up the construction of typology of typical cases applicable to general clauses,we can set up typical cases according to four aspects,such as case type of improper acquisition of other people achievements,case type of hindering competitor class,case type of entrapment of consumers,case type of improper acquisition of trading opportunities,etc.Group of cases of judicial application of general provisions.Through these four aspects of the perfect proposal to make the general provisions in the judicial application more clear.