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On the judicial rules of unfair competition

Author: ChenSi
Tutor: HuangYong
School: University of Foreign Trade and Economic
Course: International Economic Law
Keywords: Competition General Terms and Conditions Case justice Universal justice Anti - Unfair Competition Law
CLC: D922.294
Type: PhD thesis
Year: 2007
Downloads: 801
Quote: 1
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Abstract


Harmony is said to be the most ideal state of human society, yet the world today still turns out to be full of competition. It is especially irresistible in realm of business because it serves as an accelerator in improving the economic environment. Therefore, that whether competition can be efficiently regulated is an issue of essential importance to the operation of our society. Equal and free are the two determining characteristics of competition. To have the competition in order, it not only calls for the inherent self-correcting ability of the market, but also government’s interference as well as the intervention of jurisdiction. However, considering that the competition would still be out of control if the government’s intervention is performed in excessive power into the private law field, the legal regulation of judicial which is along with trial has always been an efficient means to ensure the competition is carried out properly because“the only way to complement the legislation is judicature”. Tracing back the purpose and the development of the competition law, the significance of the judicature can be easily revealed. Nowadays in China, the phenomenon of illegal competition mostly results from the low level of the public morality, which severely harmed the normal operation of our society and has become an obstacle to the development of economy, not to mention the injury to the construction of a harmonic community. In light of this, judicature’s mission is more than to interpret the doctrine of morality, which formed the core concepts of fairness and justness in competition -- thereupon to lay down guidelines in regulating competition.The operation system in regulating competition contains a large scale of rules and principles. They are firm and certain and cannot be changed by people’s wills. These rules and principles, however, all originated from the moral standards, e.g. honesty. These long existing rules and moral standards have been interacting on each other. When the moral standards framed out the general principles in solving the disputes arising out of competition, they were finally settled as the general clauses in the Law of the People’s Republic of China against Competition by Inappropriate Means.Trial is the fundamental approach through which the judicature may intervene, while the general clauses are the tests that judges can rely on in determining the illegality of competition. Certain activities or behaviors are not to be prohibited unless they are proved to be immoral under the general clauses. In other words, morality is the basic issue that needs to be taken into account in deciding the prohibition of such activities or behaviors. Therefore, judges’interpretation and consideration in applying the relevant general clauses are conclusive to the outcome of each case, which, meanwhile, ensures that the development of the law is on the right track. Regarding that the reform of the economic system of our country has now come to an important stage, how to construct and provide a fair competition environment is the center of attention in present period. Although some progress was shown, the situation has not been improved much due to the insufficient communication between the academic researchers and judges. On one hand, the researchers in the academic field lack ofknowledge of the difficulties occurred in the actual law practice. On the other hand, judges do not positively engage themselves in the updated law reform issues raised by the researchers. So, apparently, more deep and comprehensive exchange on the study in this field will be of momentous current significance and far-reaching historical significance. This article introduces the basic concepts and legal status of the general clauses, as well as some comments to the functions , the characteristics, the application range, and the fundamental criteria of the general clauses. Moreover, in associating his understanding with his actual practice of general clauses in judicial adjudication, the author suggests that from case justice to common justice is the most fundamental and realistic choice to keep competition under control.On September 2, 1993, the Law of the People’s Republic of China against Competition by Inappropriate Means was passed by the Third Session of the Eighth National People’s Congress, and was commenced on December 1, 1999. The Law of the People’s Republic of China against Competition by Inappropriate Means consists of five chapters and thirty-three articles. This ordinance aims to systematically regulate the market competition behavior from the prospective of business efficacy. It is the first ordinance in China drafted for such purpose, and so, it is very important regarding its function as to perfect and develop the market economy. Since then, many researches on this field have come into being, yet there has no constructive achievements to guide the judicial practice. Gladly, in the past three years, especially after China’s joining WTO, the research on the competition law has developed a lot. Here the author will be honored to introduce Judge Kong Xiangjun and Professor Xie Xiaoyao. Judge Kong is experienced in the actual practice of the competition law and Professor Xie is at the leading place in doing research work of this field. The author had gained a good deal of enlightenment from their masterpieces.Several analysis methods are used in this article, i.e. historical analysis method, comparison analysis method, economical analysis method and demonstration analysis method, to introduce the concepts of the competition law, the rules of competition, the judicial regulations on competition and other relating theories.The article consists of eight parts:The preface introduces the fundamental background about how the judicial regulation gets involved in competition, as well as the structure and the research methods of this article.The first part demonstrates the concepts and the main characteristics of competition and competition law, going deep into the root and the development of the competition law.The second part examines the rules of competition and the judicial regulations’intervention. In this chapter, the author also compares the competition law and judicature of China with the other countries, i.e. the United States and the United Kingdom, to support his view that the more judicial intervention to competition, the more efficient the market will be.The third part shows the criteria in judging the status of competition.The fourth part is related to general clauses. It consists of the research on theory legislation and jurisdiction of the general clauses. The judicial application of thegeneral clauses in the Law of the People’s Republic of China against Competition by Inappropriate Means is also discussed in this part. However, as the interpretation of the law is more or less an objective test, it reveals the importance of the judge’s professional competence and proficiency.The fifth part elaborates the idea of using legal actions to resolve disputes arising from competition, which is the very part of the most importance. Through analyzing the subject matter in competition disputes, the author draws a conclusion on the range of the subjects in legal actions under competition. There are also paragraphs on the comparison between competition law and other laws. The questions related to judicial practice are as well touched.The sixth part introduces the theoretical question about how the judges solve the unfair competition disputes. If the foregoing part can be considered as a research on the procedural aspect, then this part shall be the research on concrete aspect.The seventh part is a summary of the previous views by analyzing the shortcomings of the current law and proposing suggestions on how to perfect the competition legislation.The core opinion of this article is that regulating competition relies on not only the market and the government, but also the judicial intervention. On this basis, the author advances some concrete suggestions on perfecting the law of the People’s Republic of China against Competition by Inappropriate Means.

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