Research On Judgment Standards Of The Act Of Unfair Competition

For many new types of competitive behaviors,the Anti-Unfair Competition Law lacks specific provisions that can be directly applied.Therefore,the academic and judicial circles mainly rely on the general clauses of the Anti-Unfair Competition Law to regulate the new-type competitive behaviors.However,the general clauses are too abstract and ambiguous.At present,no specific standards and uniform rules for the application of general clauses have been formed.Under such circumstances,academic and judicial circles often make different or even opposite legal evaluations of the same competitive behaviors.In order to solve the problem of identifying the act of unfair competition,this article attempts to thoroughly interpret the Anti-Unfair Competition Law,and explore the identification standards and specific rules of the act of unfair competition based on the theory of competition.This article is divided into five parts including the conclusion.The first chapter introduces the disputes of ad blocking behavior as an example,introduces courts’ current methods of judging the act of unfair competition,and brings out the focus of disputes on the issue of the justification of competitive behaviors.Judicial cases that have come into effect in China often regard “behaviors that harm legitimate business activities” as acts of unfair competition.At the same time,courts often use business ethics and interest measurement to regulate competition.At present,the controversies on the justification of the act of unfair competition are focused on the determination of competition relationship and its necessity,the legal nature of interest damage,the application of business ethics,and specific rules of interest measurement.The second chapter defines the legal attributes of relevant competitive factors in the context of the Anti-unfair Competition Law.Firstly,considering the goal of market competition--“efficiency competition”,the Anti-unfair Competition Law takes the freedom of competition as the core,regarding fairness of competition as the tool to realize the freedom of competition.Secondly,the legal neutral status of competitive damage should be clarified.Furthermore,this chapter clarifies that the recognition of competition relationship is a necessary prerequisite for the application of the Anti-Unfair Competition Law,and points out the criteria for determining competition relationship.Finally,the Anti-unfair Competition Law should take the protection of the order of competition as a standard for the balance of interests,thereby identifying acts of unfair competition and protecting various interests.The third chapter analyzes the legal basis for judging the act of unfair competition.Generally speaking,the specific provisions of the Anti-Unfair Competition Law can be used as a direct basis for regulating specific types of competitive behaviors.However,if a specific provision violates the legislative objective of “Protection of Free Competition” of the Anti-Unfair Competition Law,the specific provision should be restricted or not applicable.The new law amended in 2017 sets specific provisions for the act of unfair competition in the Internet in order to meet the needs of practice,but these provisions have been questioned in many aspects,such as legality and rationality,so they should be limited to be applied.The general clauses provide considerations for the act of unfair competition.However,the evaluation of competitive behaviors based on general clauses still lacks specific standards of interest measurement.Chapter 4 attempts to construct more specific and operable rules for judging the act of unfair competition.Considering the limitations of business ethics standard,the application of this standard should be reduced,and the objective standard mainly based on behavioral performance and effects should be applied.On the one hand,subjective factors are not constitutive elements of the act of unfair competition;on the other hand,the objective standard carries out the measurement of multiple interests based on behavior.In the competitive market,"undistorted order of competition" is the basis for judging the balance of interests.Generally speaking,only when a specific competitive behavior distorts the order of competition will it cause an imbalance of interests and substantial damage to the interests of businessmen or consumers.Meanwhile,the status of the competition order needs to be revealed through the interests of businessmen and consumers,and only competitive behaviors that substantially damage the freedom of action of businessmen,or substantially damage the basic rights of consumers will distort the order of competition.Therefore,only when a specific competitive behavior distorts the market competition order,substantially damages the freedom of action of businessmen,or substantially damages the basic rights of consumers,can this competitive behavior be considered as the act of unfair competition.The fact that the public interest such as "technical innovation" is promoted cannot prevent the determination of illegality of competitive behaviors.In addition,the relationship between realistic interests and long-term interests should be looked at dialectically.Interest measurement should mainly focus on the actual effects and impacts of behaviors,not the long-term ones.At the end is the conclusion of this article which briefly summarizes the arguments of this article.