중국 부정경쟁방지법에 대한 평가

The Supreme People's Court of China has always maintained a cautious and limited position on the application of Article 2 of the Unfair Competition Prevention Act of China. In recent years, the position of applying Article 2 in a limited and careful manner has frequently appeared in judicial trials. For example, in the 'Mothering Case', the Supreme People's Court ruled in a retrial, "Although the People's Court can maintain fair competition in the market by applying the general provisions of the Unfair Party Competition Prevention Act, care must be taken to apply the requirements strictly at the same time." This aims to avoid hindering free competition in the market through improper intervention. The reason for emphasizing the restriction of the application of general provisions is the characteristics and regulations of the market mechanism itself, in addition to the direct reason for maintaining the maximum freedom of competition. The issue of the "Hongwin and Dongchangan" trial is that it should have been agreed upon in years of trial, and the ruling of the second trial of the "High Liang Incident" seems to reverse the agreed argument. The essence of the difference of opinion lies in how to understand the application of Articles 6 and 2 of the Unfair Competition Prevention Act, which is essentially related to fairness and freedom. For example, the second trial operator of the "High Liang Incident" noted, "Whether it can be admitted that the act of using voice constitutes unfair com- petition without causing confusion or misconception," and recognized, "Acts that are regulated by the Unfair Competition Prevention Act under the existing laws and regulations disrupt the market order and go against good faith and commercial morality are unfair competition even if they do not cause confusion or misconception to consumers." When it comes to establishing prerequisites for judging unfair com- petition behavior, first of all, two issues of competition must be identified. The existence of competition is a prerequisite for judging unfair competition behavior. The basic premise and basis for acknowledging unfair competition is competition, not competition. The definition of unfair competition behavior in the Unfair Competition Prevention Act is based on com- petition behavior, but no restrictions on competition are mentioned. In civil lawsuits, the original defendant often protests the existence or absence of competition, and the existence of competition is often a matter of pre-emptive resolution in the reason for judgment. In the process of market competition, the eligibility of unfair competition litigation between the original defendants has already been confirmed according to the relationship between damage and 被 damage. Conversely, if there is no damage to the competition between the original defendants and 被, it does not belong to unfair competition in the scope of civil lawsuits. The purpose of the Unfair Competition Prevention Act is not to protect good moral hazard itself, but to create a fair competitive environ- ment for all business owners and to prevent competitors from gaining an unfair competitive advantage. Today's Unfair Competition Prevention Act has already changed from protecting sincere business owners to protecting undistorted competition. Business ethics is highly uncertain, and judgment criteria should be objectified as much as possible. For many years, the Supreme People's Court of China has taken a position to advocate the concept and policy of limited or limited com- plementary protection. Limited complementary protection is also con- sidered to have sufficient legal basis. The Chinese court's ruling on the Unfair Competition Prevention Act paid more attention to static competition in the past, but more and more attention to dynamic competition in recent years. Naturally, the Chinese legal system still has a very big debate over the choice of two competitors. The first thing that involves the two different competitions is whether to protect competitors or competition, and at the same time, dealing with the question of how to understand innovation is key. The Unfair Competition Prevention Act shows a dualized legal interest protection structure that not only protects specific legal interests, but also protects general legal interests. Whether or not a special law includes legal interests that cannot be temporarily reached for common recognition, or some new legal interests that have emerged from scientific and technological advances, such as data set protection against big data backgrounds, can be protected on a pilot basis through the Unfair Competition Prevention Act. In recent years, courts' rulings on the protection of internet platform ecology in Shenzhen, Hangzhou, and other regions are a new trend in Internet platform ecology protection, which is a general legal interest in a new format of internet platforms, and indicate the independence protected by the Unfair Competition Prevention Act. Article 2 of the Unfair Competition Prevention Act habitually introduces the concept of public interest in measuring public interests even though there is no phrase of public interest, and also makes different interpretations of the public interest, at some times, disagreements arise over interpretation. In the practical process, there is a tendency to interpret the public interest excessively. The paradigm of judging the legitimacy of competitive behavior is divided into a rights paradigm and an action paradigm. Among them, in cases related to the protection of specific legal interests, the judgment paradigm tends to adopt or is close to the rights protection paradigm, and in cases related to general legal interests, the judgment paradigm adopts a paradigm considered by pluralistic interests. Freedom of competition is closely related to the Unfair Competition Prevention Act. First, free competition is the starting point of logic. Second, free competition is the goal of protection. Third, free competition and unfair competition repeat themselves. In market competition, freedom is the basis of fairness, and fairness becomes the added value of freedom. Therefore, freedom of competition is absolute, and competition and fairness are relative. Freedom of competition is a principle, and restrictions on freedom of competition are an exception. Maintaining fairness in competition should be limited and appropriate, and should not be overly involved in freedom of competition. The ideology of the owner-general relationship of freedom and fairness has an important value in the exercise of discretion in judging the legitimacy of competitive behavior. Of course, in recent decades, European countries have gradually adopted the concept of economic efficiency, that is, increasingly economic efficiency, which respects fierce competition in the market, and emphasizes and believes in the self-protection of businesses and consumers.