Research On The Protection Of Untyped Operators' Legal Interests Under The Anti-Unfair Competition Law

The newly implemented anti-unfair competition law has taken a step further on the road of typifying the emerging unfair competition behavior,adding the so-called Internet specialization.But even so,through enumerating the obligatory regulations,we can never adapt to the ever-changing market competition environment,and can never deal with all kinds of emerging unfair competition behaviors emerging in the market competition.In this context,we need to re-examine the relationship between anti-unfair competition law and general tort law.Through the comparative law and our country's legislation,we can conclude that the anti-unfair competition law originated from the general tort law,and there exists the relationship between special law and common law.Therefore,we have a new way of thinking in dealing with the unfair competition without the legislative classification,that is,we will make a judgment by referring to the constitutive elements of general civil infringement.One of the bases for the identification of tort in general is to identify the rights or legal interests that are infringed by the victimization,and then discuss whether the rights or legal interests should be protected by combining with other elements.Based on this,this paper needs to focus on the legal interests protected by anti-unfair competition law,in order to provide a fulcrum for the treatment of untyped competitive behavior.To cover the operator in case of unfair competition tend to be the most profound effects,this paper also narrowed the object of study to give appropriate results higher practical value,mainly analyzed the anti-unfair competition law protection legislation has not been typed operators of law and to protect the general requirements,which maps have not typed to processing pattern of CTS of unfair competition.Of course,following the foregoing train of thought,the first question that needs to be solved is why the anti-unfair competition law protects legal interests rather than rights,and why it protects the legal interests of operators rather than the rights of a particular operator.ccording to the discussion in this paper,first of all,through the investigation of the legislative status,it can be seen that the multi-purpose compulsorystandardization in the anti-unfair competition law guarantees the related rights and interests of various subjects.Such protection constitutes a kind of negative protection in law,and the relevant obligatory norms do not express the appearance of the rights available to any class of subjects.Secondly based on the practice of awareness,given the diversity of market competition and change fast,the operator or other main body shall enjoy the right of the interests of the patent,to some extent restrict market competition,makes the market operators,the anti-unfair competition law for operator protection has become an absolute rights protection,is not in conformity with the original properties of the anti-unfair competition law.In the process of the discrimination of legal interests rather than rights,it is necessary to select the representative theory of fair competition rights for comparative analysis,because the theory solves the problem of the object protected by anti-unfair competition law.It can be seen from the analysis that the theory has defects at the level of rights subject,only taking into account operators' rights and interests which can be protected under the anti-unfair competition law,but not taking into account consumers and the public.In addition,as mentioned above,the boundaries of fair competition are constantly changing with social development and technological upgrading,and it is more difficult,costly and difficult to correct and adjust with fixed rights.Finally,even if the untyped operators' legal interests that can be protected in the case are determined according to the thinking in this paper,it does not mean that such legal interests are necessarily protected and certain protective elements need to be applied.Under these conditions,whether there is still a need for the benefit of these rights remains to be demonstrated.The administrative standard of law can be diluted by making the interests of operators protected by anti-unfair competition law.fter the foregoing premise is clarified,the legal interests protected by anti-unfair competition law can be further typed,which can be classified into the legal interests of operators,consumers and public interests according to the standard of the protection subject.mong them,the legal interests of operators are the general competitive interests enjoyed by operators in market competition,which should include competitive advantages,business opportunities and business models.In order to avoid the judgment thinking of static rights protection after confirming the legal interests of untyped operators in a case involving untyped competition behavior,and causing the violation of the attribute of the regulation law of anti-unfair competition law,we need to establish the concept of dynamic competition and legal interests damage neutrality.The former is intended to help raise awareness of the market,stressing that anti-unfair competition law does not encourage peaceful coexistence and the "integrity" of operators.The latter is intended to emphasize that all CTS of competition will cause damage to legal interests,and the original color of legal interests damage should be neutral.Based on this,in practice cases identify a class is not typed by anti-unfair competition law to protect operators of legal interests,and regardless of the score has not typed operators legal interests is competitive advantage,business opportunities,or business model,needs to be combined with other elements may be further operators such as the role in the competition of interests has no justification,whether the operators such as legal interests can be protected.Via analysis and research,the anti-unfair competition law not typed the protection of legal interest of the general requirements of three,one,is in the case of a justified are to protect the interests of the operators of anti-unfair competition law,and then can be defined as a class of operators legal interests,such as the case,there is no such law benefit is related cases need to be careful to judge whether there is still a must be used to determine the needs of the anti-unfair competition law.Second,relevant parties are required to provide evidence of damages to the legal interests of such operators,and such damages should not only be limited to actual damages,but also include possible damages,such as the possible loss of earnings caused by improper local grab of competitive advantage;Third,the competition CTS on the legal interests of these untyped operators are improper.When of examining invalidity,considering in no definite compulsory norms under the premise of guidance,can only be applicable to the general terms,therefore,should be in accordance with the restrict competition purpose clear degree,determine whether only applies the principle of good faith to determine competitive behavior justified or not,or the introduction of a more comprehensive benefit measure mechanism.In the process of using the benefitmeasurement mechanism to investigate whether the relevant competitive behaviors violate the business ethics or the principle of good faith,there should not be arbitrary cases of one kind of legal interests or interests being sacrificed,but should also introduce the principle of proportion to regulate and restrict the whole process of interest measurement.The ideas mentioned above can be applied to the disputes related to untyped unfair competition behaviors.What needs to be solved is the identification of such unfair competition behaviors and the protection of untyped operators' legal interests.In view of the formal implementation of the anti-unfair competition law on January 1,2018,bearing the new typed provisions,it is necessary to select the latest cases of unfair competition that have not yet been covered by the revision for analysis and research and to apply the general elements mentioned above in practice.Based on several existing not typed into CTS of unfair competition in the case of comb,in response to our courts not typed CTS of unfair competition,has been gradually realized the need on the applicable general terms and conditions for the interests of the measure,the operator should be considered interests,consumer interests and public interests,but not in the first place in the process of case to solve,set for the anti-unfair competition law to protect the legal interests of train of thought.The discussion in this paper is based on the protection of untyped operators' legal interests.Therefore,when applying the general elements summarized in this paper to analyze all typical cases,it first abstracts the untyped operators' legal interests which are worth protecting by anti-unfair competition law.It can be seen that the advantage of applying such ideas is to clarify whether anti-unfair competition law needs to be applied.Secondly,the damage required by the application of general terms can be judged more intuitively.Finally,the specific definition of the legal interests of untyped operators,in the process of the measurement of interests,the clear understanding of the ranking and conflict between interests has a promoting role.The concept of protecting legal interests against unfair competition is the premise of this paper.Secondly,the concept of dynamic competition and law interest damage neutrality is the valuable support of this paper.With the establishment of such concept,it is necessary to further discuss the premise of protecting the legal interests of untyped operators,rather than adopting a static protection idea of the interests of such law interests or quasi-rights.