| With the progress of science and technology and the prosperous of platform economy,the competition among operators is becoming increasingly fierce.Commercial slander which as a special improper is common in practice,and its behavior characteristics and judicial discretion are also quietly changing.Albeit China’s anti-unfair competition law revised twice in recent years,the relevant provisions regulating commercial defamation have not changed much,still remain in the limited adjustment of words,and the definition of meaning is not specific and clear enough;there are many different judgments in the same case.Through the comparative analysis of 100 cases of commercial defamation,combined with the basic theories and legal provisions of commercial defamation,this thesis hopes to explore the similarities and differences between different types of commercial defamation in judicial practice and the differences in judgment,and learn from foreign regulatory experience to explore the solution path from the legislative and judicial levels,in order to promote the further improvement of the anti-unfair competition law.This thesis is classified four portions.Chapter 1 introduces the background and importance of the topic,and explains the domestic research status,the research thinking and means of this thesis.Chapter 2 explains the selection process of 100 commercial defamation cases,summarizes the basic situation of the cases,and protruding research implications.All cases come from China judicial documents network and are searched with the keyword "commercial defamation".From January 2015 to June 2021,a total of1034 cases were selected for detailed analysis(see the appendix for the list of judicial documents of 100 commercial defamation cases).Chapter 3 takes 100 cases of commercial defamation as the context,combs and comments on the conflicts existing in judicial practice,including: in terms of the determination of subjects,conflicts between competition relations and the scope of business operators;objective acts,conflicts between defamation objects,dissemination acts and freedom of expression;and in terms of liability,the application of apologies and The criteria for identifying the indemnity.Chapter 4 puts forward improvement suggestions on the subject identification,behavior identification and legal liability of commercial slander:(1)in terms of subject,improve relevant legal provisions,that is,expand the scope of "business operator" and "competitive relationship";(2)Objectively,criteria for distinguishing responsibilities of different subjects,it is clear that the target of slander needs to be specific,that the communication between specific objects can constitute commercial slander,and the applicable boundary of freedom of speech;(3)In terms of legal liability,it is proposed to clarify the subject of responsibility,not to bear the responsibility of apology,generally apply the punitive compensation system,and unify the identification standard of the amount of compensation. |
