Study On The Application Of The General Provisions Of The Anti-Unfair Competition Law

With the development of China's market economy,new formats and business models have emerged.The "Anti-Unfair Competition Law" enacted in 1993 inevitably has some unsuitable places.In order to meet the needs of the development of the market economy,the 30 th meeting of the Standing Committee of the 12 th National People's Congress revised the Anti-Unfair Competition Law on November 4,2017.The variability of competitive behavior leads to the law not exhausting the types of unfair competition behavior.Therefore,in practice,the judicial organs and administrative agencies tend to characterize other competitive behaviors in accordance with the provisions of Article 2 of the Anti-Unfair Competition Law.However,the theory and practice circles have not reached a completely consistent understanding of the nature of Article 2 of the Anti-Unfair Competition Law and its applicable rules.This paper firstly determines the general terms and conditions of Article 2 of the AntiUnfair Competition Law.On this basis,it analyzes the related issues involved in the general clauses.Then,combined with the application of the general provisions in the current judicial field and administrative law enforcement practice in China,we find out the shortcomings of the general provisions of the judicial organs and administrative organs in China.Secondly,on the basis of examining the legislative and applicable models of general clauses in extraterritorial countries and regions,we explore the experience that can be used for reference in the content design and application model of the general provisions of our anti-unfair competition law.Finally,combining the experience of extraterritorial countries and regions with the actual situation in China,and proposing the application of general provisions by administrative agencies and judicial organs to maintain market competition order,protect the legitimate rights and interests of operators and consumers,and promote the effective operation of competition mechanisms.This article is divided into four parts,except for the "introduction" and "conclusion".Part ?: Identify Article 2 of the Anti-Unfair Competition Law as a general clause,analyze the formal functions,substantive functions and application of the general clauses,determine the applicable standards of the general clauses,and explore the judicial organs and administrative organs as the subject of general provisions.Rationality and legitimacy,evaluate the advantages and disadvantages of the provisions of the general provisions of the current Anti-Unfair Competition Law,and lay the theoretical foundation for the following issues and solutions to the general provisions.The second part: through the study of the judicial application and administrative application status of the general provisions of the anti-unfair competition law of our country,it is found that the applicable conditions in the judicial application are too wide and the applicable standards are not uniform,and there are legitimate defects in the administrative application,and the law enforcement rights Unclear,lack of openness of the procedure,lack of supervision mechanism for discretion,and so on,thus providing a factual basis for the content of the fourth part.The third part: Investigating the legislative model and application of the general clauses in the anti-unfair competition law of extraterritorial countries and regions,mainly based on Germany,Switzerland and Taiwan,summing up the advanced experience and combining with China's anti-unfair competition law.The problems in the application of the provisions provide experience for the improvement of the application of the general provisions of Part IV.The fourth part: the paper settles on the solution to the problems existing in the general provisions,mainly from the legislative provisions,judicial application,administrative application: in the legal provisions,the content of consumer group litigation and the violation of general provisions Administrative responsibility;in the improvement of judicial application,establish the conditions and standards for the application of general provisions by the judicial organs;in the improvement of administrative application,it mainly refers to the clarification of the boundary and law enforcement system applicable to the general provisions of the administrative organs,and the procedures for the application of general provisions by the administrative organs,Judicial review of administrative application,from the outside of the administrative agency to supervise the exercise of administrative power,to ensure the normative application of the general provisions.Through the above three aspects to improve the application of the general provisions,I hope to achieve the legislative objectives of the "AntiUnfair Competition Law",in order to maintain a good market competition order and promote the effective protection of the legitimate rights and interests of operators and consumers.