Judicial Determination Of Commercial Defamation And Its Civil Legal Liability

In the modern fierce market competition,commercial defamation disputes last a long time,and the circumstances of commercial defamation become more complex and hidden.There are many discussions on the identification of the constitutive elements,and the civil legal responsibility that should be applied to it is even different.In the case of "dispute over unfair competition between a technology company in Sichuan and a company in Japan",the parties disputed whether the act of sending a patent infringement warning letter constituted commercial defamation and the application of civil liability,which led to a series of related discussions.As for the determination of commercial defamation,Article 11 of China’s AntiUnfair Competition Law in 2019 provides that a business operator shall not fabricate or disseminate any false information or misleading information to injure the credit standing of its rival or the reputation of its rival’s commodities.In this case,the defendant is an operator,and the defendant has subjective fault.Objectively,the act of sending a patent infringement warning letter spreads misleading information and damages the object of the plaintiff’s goodwill,which should belong to the act of commercial defamation.As for the application of civil legal liability for commercial defamation acts,as a special tort act,commercial defamation acts also apply to general forms of tort liability,such as stopping the infringement,eliminating the impact,making an apology and compensating for the loss,etc.However,there is no unified standard for the above-mentioned forms of liability in judicial practice.As for the behavior of the defendant in the case of indiscriminately sending warning letters,the application of the apology should not be avoided,and the discretionary factors should be fully considered and reasoned in the calculation of compensation for loss.If necessary,the evaluation mechanism can be introduced and the use of big data and other technical means can be used,so as to make the application of civil liability of commercial defamation more standardize.Since the provisions of the the Anti-Unfair Competition Law are more principled and cannot fully cover the patent infringement warning behavior in practice,and there are different modes of adjudication in different cases,so there are often differences in judicial determination.Therefore,the study on commercial defamation behavior is carried out to summarize its constitutive elements,and extend the study on the justification standard of patent infringement warning behavior to clarify its civil liability form and provide clear adjudication ideas for judicial practice.