The Theory Of "The Recognized Commercial Ethics" Standards Applied In The Cognizance Of Unfair Competition

The general term of anti-unfair competition law naturally contains the essence of commercial ethics,namely the standard of commercial ethics is the core content of the general term.The existence of the the general term is able to coordinate the stability and flexibility.The application pattern of commercial ethics in the judicial practice has two kinds of circumstances.One of the situation is available to the function of complement,which only can strengthen the rationality and persuasive in form.That is to say the standards application in such cases can’t make essential efforts to this process.The other situation is the model of independent application,which can effectively regulate the untyped acts of unfair competition and play the important role in filling the legal loopholes.In reality,the transformation of the abstract commercial ethics often get into trouble in the process.The essential question is how to specify the general term in the trial.The author try to summarize the specific standards of evaluation from the cases which have been judged.Currently,the industry practice and the industry competition rules act as the main judgment in the judicial practice.But it still needs the theory and practice to testify.Such as the Robots Exclusion Protocol in the internet area,the court make basic agreement on this issue.However,there is no cases to substantively judge the fairness and rationality of the rules which the Robots Exclusion Protocol sets.This kind of practice is not only injustice in procedure,but also lack of legitimacy foundation.If the case needs to apply the industry practice in the process of judicial practice,the judge should separate and identify the rules from the perspective of legal elements.The judge hope to extract a typical industry competition principle which can be widely used to restrict the behavior of the mutual interference from the trial experience.But the condition and the scope of the application is still in doubt.At present,this principle widely used will easily cause the randomness of the judicial standards.The existing judicial cases,legal methods and the accumulations of the theory are not enough to extract industry competition rules as the the judgment standard for the specific moral.The embodiment of commercial ethics is not just according to the judge’s inner justice and the rule of thumb.The practice is more inclined to take great importance to the legislative purpose and value function of the anti-unfair competition law.The damage of market order and consumer interests may be taken consideration into the embodies of commercial ethics.The general thought is to desalt the subjective motive of moral evaluation and turn to analyze the market effect.That is to say the market utility is the logical starting point.The judge will focus on estimating the impact of the objective influence that the market participants’ behavior have been caused.The protection goal of the anti-unfair law successively experienced from the competitor protection,consumer protection to the extensible change in the prohibit of the distorting competition.In the case of the conflict of interest,the usage of the general term should usually consider the consumer and social public interests.As the consumer interests and public interests often cross overlap,which is largely represent or extend the public interest.The future development direction to embody the general term has two paths.One path is to set the social accepted moral ethics as the standard,and the deduce the specification of the content in the context of the competition law.The other path is to establish the technical device which can absorb moral resources,transform system and guarantee the justice of the mechanism.All the efforts are dedicated to achieving the requirements for the law stability and promoting idealistic rights to reality rights.