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Research On The Implementation Subject Of The General Provisions Of The Anti-Unfair Competition Law

Posted on:2019-03-02Degree:MasterType:Thesis
Country:ChinaCandidate:S Y ZhouFull Text:PDF
GTID:2436330545470534Subject:Law
Abstract/Summary:PDF Full Text Request
The general clause in Anti-Unfair Competition Law is a general clause and an authorizing clause.It has the function of authorizing the law enforcement agencies to identify acts of unfair competition other than those enumerated by the law.China's legislation does not explicitly specify the main body of implementation of the general clause,and the theoretical circle does not have a unified understanding of the main body of the general clause.However,in practice,the general clause in Anti-Unfair Competition Law has been widely used by the judiciary and the executive authorities because of its basic functions,and the unfair competition practices identified by the law have been able to achieve good results in maintaining the order of market competition.However,due to the lack of a clear mandate,the legitimacy of the legal enforcement of the judiciary and the executive authorities has been questioned.The issuance of the Guiding Case No.45 of the Supreme People's Court has in fact admitted the dominant position of the general clause of the judiciary.In the amendment process,the 2006,2008 and 2017 revision drafts also appeared to have legal provisions that authorized the administrative agencies to apply the general clause.Although they did not appear in Anti-unfair Competition Law that was formally adopted in 2017,at least The issue of implementing the general clause in Anti-Unfair Competition Law is worth exploring.Thinking about the mode of implementation of the general clause in Anti-Unfair Competition Law and the design of the system will also play an important role in maintaining the order of market competition and protecting the rights and interests of citizens.This article comprehensively uses the case analysis method,the comparative research method,and the method of legal teaching to analyze the problems of this article.Based on the investigation of theory and practice,the theory of the general clause in Anti-unfair competition law is combed to demonstrate the article's central view.The main body of enforcement of the general clause in Anti-Unfair Competition Law shall adopt a two-way model applicable to both the judicial and administrative agencies;A comparative analysis of the institutional models of Germany,Europe and the United States will explore the legislative goals and historical and cultural differences between countries in order to establish a suitable legislative model based on China's national conditions.The main part of this article mainly includes the following five parts:The first part is the introduction part.Starting from the significance of the Supreme People's Court No.45 guidance case,this paper abstracts the central issue of the article,that is,whether the judiciary and the administrative agency can become the main body of the general provisions of the anti-unfair competition law;The second part,through the analysis and analysis of the general theory of theory,lays the foundation for the demonstration of this point of view,and analyzes the reasons and advantages and disadvantages of different selection modes,and tries to further highlight the bright points of this article.The third part,through the inspection of practice at home and abroad,mainly the legislation of Germany and Europe and the United States,combing relevant cases and legislative documents,analyzing and demonstrating,and trying to prove the viewpoint of the article;In the fourth part,the review of the existing system mainly analyzes the existence and disuse of the relevant clauses in the revision process.On the basis of the intent of the legislator,it analyzes some existing defects in the legislation and puts forward some suggestions for perfecting the system.In the five parts,the full text is summarized and concluded.
Keywords/Search Tags:Anti-unfair Competition Law, the General Clause, the main body of the implementation
PDF Full Text Request
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