Study On Application And Improvement Of Article 12 Of Anti-Unfair Competition Law Of The People’s Republic Of China

In recent years,with the gradual increase of new types of unfair competition behaviors on the Internet,relevant authorities often cite Article 2 of Anti-unfair Competition Law of the People’ s Republic of China as the judgment basis and follow the standard“damage+violation of business ethics" when dealing with related cases However,it will lead to the generalized application of the general provisions and the tendency of“infringement”of judgment standards for relevant behaviors easily Moreover,the administrative authorities have not been granted with the power to regulate unfair competition behaviors on the Internet,which hinders the timely containment of unfair competition behaviors on the Internet objectively.Therefore,China revised Anti-unfair Competition Law of the People’ s Republic of China in 2017 Article 12 of the said law,i.e.the“Internet clause”,is stipulated through the method“enumeration+generalization”.The three specific acts listed in it are a summary of judicial practices and is applicable to some current disputes over unfair competitions on the Internet.It provides a clear adjudication basis for judicial adjudications to a certain extent,and also provides a legal basis for the intervention of administrative authorities.All the above indicates the necessity and positive significance of this provision.However,Article 12 also faces application difficulties,such as vague subjective conditions of the article,narrow extension of the types of acts,and excessively general miscellaneous provisions,forcing the relevant authorities to deal with cases still according to the original“infringement”thinking.In addition,there is also a problem of“valuing judicial trial over administrative enforcement”in the application of this clause,that is,most disputes are solved by judicial adjudication,while administrative enforcement and its means have not played their corresponding roles All the above is not conducive to the rapid and timely solution of problems.In view of the above problems,the author suggests speeding up the legal interpretation(the legal interpretation here should include formal legal interpretations such as legislative interpretation,judicial interpretation and administrative interpretation.),and improving the judgment standards for behavior.At the same time,the judgment thinking should focus more on the“legitimacy”of the behavior itself,and summarize the business ethics in line with the characteristics of the industry in time to clarify the judgment standard.Meanwhile,in order to solve the problem of excessive reliance on judicial adjudication in the application of laws,we should speed up the interpretation of relevant laws,refine miscellaneous provisions,give full play to the role of administrative authorities,and make flexible use of administrative interviews starting with legislation,judicature and law enforcement,etc.In addition,the country should also attach importance to the role of social organizations(social organizations here are mainly those closely related to business operators’production and operation and consumers’daily life,such as trade associations,and consumer associations.)in standardizing unfair competition behaviors on the Internet and constructing a multiple management system for unfair competition behaviors.