Research On The Identification Of Unfair Competition Acts Of False Propaganda

China’s regulations on false propaganda are mainly reflected in Article 8 of the Anti-Unfair Competition Law(“AUCL”).From the content of this article,it only stipulates the behavior mode and consequences of false propaganda.However,in practice,in the identification of false propaganda behavior,in addition to the propaganda behavior of the operator,Chinese judges are affected by the traditional tort law.There is a gap between the provisions of false propaganda and judicial judgments.Judges in China have different ways of thinking about the identification of false propaganda.Some judges did not distinguish between the elements of the behavior and the elements of the plaintiff’s qualifications and the elements of liability for damages.Some judges were influenced by the theory of infringement,and when determining false propaganda,they focused on the question of whether the plaintiff’s rights and interests were directly damaged.The fundamental reason for the above-mentioned problems of identification of false propaganda is that the AUCL is difficult to break away from the framework of tort law and the expansion of tort theory.In China,false propaganda infringement identification paradigm includes the legitimacy of acts into the consideration of infringement,which lacks a theoretical basis.In addition,because infringement paradigm emphasizes direct damage to operators,it is difficult to fully consider consumer interests and social public interests.The act of false propaganda is different from the acts of confusion and commercial defamation as stipulated in Chapter 2 of the AUCL,which are directly targeted at specific subjects.The damage object of the false propaganda is often unspecified.This feature is in conflict with the paradigm of infringement identification,because infringement is often aimed at specific objects.An important consideration of the false propaganda clause of the AUCL is to protect consumers from the deception of false commercial propaganda.The traditional infringement paradigm can hardly give play to the initiative of operators to stop false propaganda,and it is difficult to achieve the purpose of protecting consumers.As the characteristic of the AUCL attribute discussions intensified,more and more scholars began to interpret the AUCL from the perspective of economic law or competition law.The transformation of AUCL from "tort law" to "behavioral law",from protecting the interests of operators to balancing multiple values lays a foundation for the paradigm of behavioral-centered identification.The center of behavior-centered paradigm focuses on the evaluation of competitive behaviors rather than the judgment of infringement of rights or specific legal interests.The change from the "sole source" rule in the common law to the application of Article 43(1)of Lanham Law in the United States also highlights the increasing importance attached to the identification of competitor’s behavior.The inherent interest balance attribute of the legitimate judgment of competition behavior makes it more applicable to the identification of false propaganda behavior.The application of this paradigm is conducive to the realization of multiple values of competition law.The behavior requirement of false propaganda is different from the plaintiff’s subject qualification requirement and damage compensation requirement.Under the behavior-centered paradigm,the identification of false propaganda should not only follow the decision center of whether the behavior is justifiable,but also meet the behavioral requirements stipulated in Article 8 of the AUCL.