Legal Issues Of The Conflict Between Freedom Of Commercial Speech And Regulation Of Unfair Competition

The values of free speech are obtaining the truth, improving the democracy and achieving social harmony. Now it has become a fundamental right of human beings and been expressly defined and protected by the constitution of the majority of countries. So far, articles about free speech from the perspective of constitutional law are voluminous. However, with the rapid development of commodity economy, status and value of free speech in the field of business has become increasingly more important and higher. Study of commercial speech in china is countable. With the development of economy and society, the connotation of the commercial speech is extending, which will hit the boundary of the legal regulations. Freedom of commercial speech is limited. When the commercial speech and the regulation of unfair competition risk friction, maintaining a balance between both two as their legal interests is what to do to make commercial speech obtain reasonable restrictions and to have better protection under the regulation of unfair competition.When regulations of unfair competition set a restriction on the freedom of commercial speech, many countries decide whether the commercial speech is protected on the basis of value consideration in each case. When facing a number of different interests, different nation may lay emphasis on different one. Some scholars have put forward such a theory that is give commercial speech and political speech different standards and degree of protection, but it is still in dispute. The legal protection of commercial speech has not formed a unified standard, which leads the court verdict based on judge discretion was not a final result, in other words, in similar circumstances one case constitutes infringement of unfair competition and some similar do not. To avoid this possibility, we need scientific theory to show us the direction of legislation and to set a boundary tablets for free enjoying the right of commercial speech.This article starts with the introduction of domestic and foreign related cases and some issues in comments. And then it analyzes reasons of the conflict between freedom of commercial speech and regulation of unfair competition. Finally, this thesis is aimed to explore solutions on how to resolve conflicts and to obtain a balance between freedom of commercial speech and regulation of unfair competition. Apart from the preface and the summary, this thesis can be made into four parts. The first part is a summary of related cases at home and abroad and reasons for the decision in judgment. Through the analysis of Master Kong case, Hengsheng case and Hertel case, it raises such questions that is what is commercial speech and whether consumers’ comments and commercial speech of the mass media which is without competition relationship belong to the inner meaning of the commercial speech or not. Besides, it makes me start to think about the reason of conflict between freedom of commercial speech and regulation of unfair competition.Obviously, the second part analyzes the reasons of the conflict between the freedom of commercial speech and the regulation of unfair competition, which develops on the basis of the classification of speech. Then it tries to make a distinction between commercial and non-commercial speech. The expansion of commercial speech’s connotation and the ambiguous border of the unfair-competition law make the conflict of both two inevitable.The third part is mainly to ease this contradiction. This part is to find the balance method of the freedom of commercial speech and the law of unfair competition, in reference to the established standards by the European and American judicial practice. And a detailed analysis of how mass media plays in such a relevant issue is particularly included.Finally, starting from the current situation of China, the fourth part discusses the localization of the balance method of both two above. After the summary of current situation, several suggestions are given as followed. Firstly, have commercial speech constitutionally guaranteed. Secondly, referring to the relevant principles established by the European and American judicial practice, try to make the conflict between freedom of commercial speech and regulation of unfair competition eliminated. And thirdly, promote the security system of commercial speech being eventually established and etc.Looking forward this article can leave some values after cross-analysis of domestic and foreign classic cases and the theories. Perfecting the relevant rules about protection and regulation of commercial speech is a complex and difficult task; we still have a long way to go.