Research On The Path Selection Of The General Provisions Of The Anti-unfair Competition Law

With the development of market economy,the operation mode and transaction mode of market subjects are changing.The regulation clauses of typed unfair competition behavior are difficult to cover the endless competition behavior in real life.Therefore,it is a common choice for most countries to set up general clauses in anti unfair competition law to regulate new or difficult unfair competition disputes that cannot be regulated by typed clauses,so as to make up for the inherent deficiencies of written law.At the beginning of China's Anti Unfair Competition Law,there were different opinions about whether there were general clauses in China's anti law in the theoretical circle.Even among the scholars who hold a certain conclusion,there was no agreement on whether the core content of China's anti unfair competition law general clauses is the principle clauses or the definition clauses.At the same time,the path of applying general clauses to judge unfair competition behavior is also due to This is different.The discussion about the application of general terms in theory and practice is increasing with the outbreak of unfair competition under the background of Internet in recent years.Network unfair competition is different from traditional unfair competition because of its characteristics of high innovation,strong technology and great damage,especially consumer interest.It can be said that how to apply the general provisions of the anti unfair competition law to determine the unfair competition behavior is controversial in theory and practice,and the unfair competition disputes in the Internet field make this more prominent.Therefore,it is necessary for us to make clear the application path of the general terms on the basis of correct understanding and understanding of the general terms,so as to provide appropriate theoretical guidance for judicial practice,so as to solve the endless new problems and difficult problems in reality.The main thread of this paper is to raise,analyze and solve problems.The first chapter summarizes the current path differences of the application of general terms and points out the problems caused by the path differences from the judicial practice of our country.The second and third chapters respectively analyze the origin of the two paths of the application of general terms,and then make a multi angle comparative analysis of the two paths to make clear the appropriate path selection.Finally,in the fourth chapter,the author discusses how to develop the path of application of the general terms.Specifically,in the first chapter,the author combs and summarizes two kinds of path choices gradually formed in the judicial practice of applying general terms to solve unfair competition disputes: the tort law path focusing on the damage of rights and interests,emphasizing the protection of specific rights and interests,and the competition law path focusing on the protection of competition order and emphasizing the protection of competition order,so as to show the applicable general terms in the judicial practice of our country The inconsistencies in the choice of the general terms and the differences in the application of the general terms lead to more uncertainty in the application of the general terms which have certain abstractness.At the same time,the differences in the consideration factors of the two paths for the illegality of the business behavior also lead to the differences in the legal purposes they achieve.Then in the second chapter,the author analyzes the evolution process of the path of the application of general provisions,and discusses the origin of the path of traditional tort law and the path of competition law in the modernization process of anti unfair competition law.The former is closely related to the historical background of anti unfair competition law positioning as the special law of civil tort,reflecting the obvious orientation of civil law,while the latter is in the process of anti unfair competition law from tradition to modernization Gradually formed,consumers' rights and interests,competition elements are more prominent,showing a different trend of competition order protection from the path of tort law,and further mining the influencing factors of path differences.On the basis of the second chapter,the third chapter further analyzes the differences between the attributes of law,the value of law and the realization of law behind the path of tort law and competition law,and then establishes the applicable path in line with the attributes and concepts of anti unfair competition law.Finally,in the fourth chapter,it discusses how to develop the competition law path of general anti law provisions in China,clarify the concept of anti unfair competition law protection of competition order,and elaborate the specific content of interest disclosure and evaluation,the overall balance and coordination of interests under the method of interest measurement.Through the research on the general terms of anti unfair competition law from the perspective of normative theory and applicability theory,this paper analyzes the core content of the general terms of anti unfair competition law in China,and further clarifies the consideration factors and application logic of the general terms in unfair competition disputes.On the one hand,it can provide a certain value judgment standard and a certain boundary for the application of the general terms in judicial practice in China to solve unfair competition disputes And principle,in order to ensure the objectivity and accuracy of the application of general terms to the greatest extent,to better deal with new and difficult problems in market competition.On the other hand,to enhance the predictability of market participants,especially competitors,in the process of competition,so that anti law can play its role in guiding market competition behavior and ensuring market competition order.