| The Anti-Unfair Competition Law emphasizes in the first paragraph of Article 2that operators should abide by the law and business ethics in their production and operation activities.When the new type of competition behavior exceeds the type of unfair competition behavior stipulated in the second chapter of the Anti-Unfair Competition Law,business ethics plays a key role as an important basis for judging unfair competition behavior.However,the concept of business ethics itself is vague,and the legal provisions do not specify its identification criteria.Although the Interpretation of Several Issues Applicable issued by the Supreme People’s Court in2022 has guided the business ethics identification criteria in a certain direction,there are still many differences in judicial application.After collecting and sorting out the judgment documents of domestic courts related to this topic from 2013 to 2022,it is found that the judicial determination of business ethics standards is mainly based on four ways to prove the theory,namely:the principle of good faith,industry practice,judge creation rules and interest measurement methods,but there are four difficulties in the following four aspects.First of all,the relationship between the principle of good faith and business ethics is vague,and the unfairness of competitive behavior is judged based on the principle of good faith in traditional civil law,which destroys the order of free market competition.Secondly,industry practice cannot be fully equated with business ethics and it is too hasty to use existing industry practice to determine business ethics without examination.Furthermore,the judge’s decision rules extracted on the basis of individual cases have unclear boundaries of discretion and lack of rigorous argumentation process and jurisprudential support.Finally,the practical application of the current interest measurement method treats market competition with a static competitive thinking,lacks the consideration of consumers’ long-term interests,and loses independent judgment on public interests.The measures to improve the judicial determination standard of commercial ethics in the Anti-unfair Competition Law are as follows: First,it is clear that the principle of good faith and business ethics have a common source of law and essential attributes.Although the principle of good faith can be used as one of the criteria for the identification of business ethics,it can only be used as an auxiliary means.Second,establish the examination standards of industry practices,improve the auxiliary mechanism of the examination of industry practices,cooperate with commercial subjects,government departments and expert witnesses to jointly promote the standardization and perfection of industry practices,which is more in line with the applicable basis of business ethics.Third,take the judicial creation rules as a supplementary means to identify unfair competition behaviors,and make it clear that the creation rules must conform to the legislative purpose and spirit of the competition law,have a rigorous argumenting process,and have a large number of cases to support,so as to improve the rationality of judges’ future creation rules,optimize the existing rules,and provide certain reference basis for judges to apply such rules.Fourth,fully grasp the benefit measurement method,take it as the key to identify the new unfair competition behavior,to establish a dynamic view of competition to consider the interests of operators,comprehensive consideration of consumer interests,paying attention to both short-term and long-term interests,clear the specific connotation of the public interest under the vision of competition law,dialectical interpretation of the public interest in the final position of the benefit measurement. |
