On The Judicial Application Of The General Provisions Of China’s Anti-Unfair Competition Law

In today’s increasingly complex economic life and increasingly diverse competition behaviors,new types of unfair competition behaviors emerge one after another.If we rely solely on the specific enumeration of anti-unfair competition behaviors,the scope of adjustment of the anti-unfair competition law will be greatly reduced.Affect the normal market competition order.At this time,the general provisions of the anti-unfair competition law function to make up for legal loopholes based on its openness and inclusiveness.Judging from the constituent elements of the general clauses,the principle of honesty and credit and the recognized business ethics are the elements of judgment at the core.To some extent,the process of applying justice to the general clauses is the process of concreting the above elements.It is precisely because of the inclusiveness and openness of the general clauses that the scope of application of the general clauses has been expanded.In the judicial practice,the judiciary has fully exerted the judicial initiative and formed a large number of cases based on the general terms.However,the abstraction of the judgment standard increases the difficulty of application.The general clause also brings the uncertainty of the law application while maintaining openness.It is embodied in the excessive application of the general provisions in judicial practice,which leads to the occurrence of the "general clause escape" phenomenon;the court’s definition of the competitive relationship is not clear,causing confusion in the application;the court extracts in the judiciary "non-public interest is necessary The rules of the referee represented by the "interference" are full of morality,which aggravates the uncertainty of the application of the general clauses;the imperfect protection provided by the relevant interests of the unfair competition is still in the stage of indirect protection.The principle and abstraction of the general clause itself,together with the academic community’s lack of consensus on the nature of the general clauses,and the fact that some of the judiciaries hold a static view of competition together lead to the above problems.How to enhance its certainty in the application of the general terms becomes an urgent problem to be solved.In order to improve the judicial application of the general provisions of our country,the judiciary should first recognize the judicial application status of the general clauses in the judicial concept,and at the same time,it should maintain a certain modesty for the application of the general clauses,strictly apply the applicable standards of general clauses,and clarify the general provisions and Applicable terms for specific terms to avoid abuse ofgeneral terms.In particular,when a judge refines the relevant referee rules according to specific cases,he should make a full theoretical proof.Secondly,when judging the competitive relationship,the competition relationship should be understood in a broad way,and the judgment of the inter-city competition relationship between the two parties should not be used.Thirdly,in the case of accumulating a certain number of cases in which the general clauses are applied,in order to strengthen the application of the anti-unfair competition law,it is necessary to extract the commonality from the generalization of the general clauses,to timely raise the judicial experience to the legislative level,and to compress the general clauses.The application of space to improve the stability and of the law;type is the result of the application of the general provisions,and will not replace the existence of the general provisions,the two work together to ensure the good development of the market competition order.Finally,the anti-unfair competition law achieves the multi-dimensional superposition of protection objectives,and the consumer interests are also included in the scope of protection.It should establish a protection system that applies to the consumer’s holistic and abstract protection against the unfair competition law.