General Provisions Of The Anti-Unfair Competition Law: Legal Structure And Judicial Application

The first and second paragraphs of Article 2 of the Anti-Unfair Competition Law have not changed much even though they were amended in 2017.The controversy over whether the scope of general clauses is excluded,partially or totally covered by the theoretical circles and judicial application is continuing.To define the scope of general provisions of anti-unfair competition law,we need to understand the basic principles of general provisions,so as to determine the definition criteria.The general clause originated from the continental law system.Its function is to find a balance between strictly following the principle of separation of powers in the revolution and the actual needs,to implement the value of equity and justice in the substantive sense into the specific law,and to truly implement this legal value.Thus,it concludes that the general clause has the characteristics of authorization,control,principle and complementarity.And judges,based on the practical needs and the authorization of the legislature,apply rules with certain principles in content to supplement and apply them.The anti-unfair compet-ition law is based on solving the problems of lag and rigidity,while avoiding excessive use of discretion.Thus,it is necessary to introduce general provisions.The anti-unfair competition law with general clauses is born and developed in response to the market economy.It has commercial ethics in content and emphasizes the structure to rules.Based on the generality and characteristics of general clauses,we find that both the first and second paragraphs of Article 2 are partially in line with the characteristics.Only when they are applied together,can they be more in line with the general clauses.Even if they are applied together,there are still some shortcomings and difficulties in judicial application,which need to be constructed concretely.In the legal structure,except for the core of the determination of unfair competition,the other conditions need not become necessary elements of general provisions.In the future,in the application of law,the main operator should identify the nature of the behavior,and the competition relationship can be used as a reference.But the most important thing is to firmly grasp the principle of good faith,business ethics and law in the unfair competition,and the damage and subjective elements are all the elements of responsibility.Structurally,in order to ensure that the general clause conforms to the structure of the rules,it is necessary to add elements of legal consequences.The legal consequences should be distinguished from the legal consequences of the general tort liability law,and should adopt the way to effectively curb unfair competition.Structurally,in addition to escablishing a legal consequence,it can also imitate the form.of general provisions of tort liability law.It is inadequate to construct legal provisions.Judicial authority need to conform to the concept of market economy with general provisions and pay attention to the behavior and consumers'interests.