abstract
This paper discusses the position of anti-unfair competition law in the legal system from three aspects, and discusses the role of anti-unfair competition law from three functions of regulating market behavior.
Keywords: anti-unfair competition law, the role of the legal system of socialist market economy
China's socialist market economy is a highly developed commodity economy. Under the condition of market economy, there are objective relations between enterprises in terms of specific output, specific quality, specific efficiency and specific service. Therefore, there must be market competition under the condition of socialist market economy. Only by letting socialist enterprises survive the fittest according to the laws of market economy can we increase output, improve the quality and quality of enterprises, promote domestic commodity circulation, prosper urban and rural markets, rationally allocate limited social resources such as funds and raw materials, and promote the smooth development of socialist market economy on the premise of continuously improving economic benefits.
China will join the WTO, and the competition rules of the WTO, such as the principle of non-discrimination, the principle of fair trade and the principle of transparency of trade laws and policies, will also become the competition rules of the domestic market with the integration of the domestic market and the international market. Anti-unfair competition law is the key means to ensure this kind of competition rules.
This paper intends to discuss the position of anti-unfair competition law in the legal system from three aspects, and explore the role of anti-unfair competition law from the three functions of regulating market behavior.
First, the status of anti-unfair competition law in the legal system
(A) the legal system of socialist market economy is an organic whole.
The legal system of socialist market economy is divided by departmental law, which mainly includes civil law, commercial law and economic law. The legal system of socialist market economy is also an important part of the socialist legal system based on the Constitution. Its basic structure is as follows:
(1) Market economy subject method;
(2) the behavior of economic subjects;
(3) Market economy management law;
(4) Market system method;
(5) Market dispute resolution.
Judging from the attribution of the anti-unfair competition law, it should belong to the market economy management law, not to the legal norms that regulate and adjust the competitive behavior of economic entities in market transactions, that is, the behavior law of economic entities. The reason is that it is impossible to classify "behavior" into the subject behavior law only by standardizing or regulating it. Almost all legal norms regulate and adjust people's behavior, even in the laws of market entities such as company law and bankruptcy law, it is necessary to regulate or adjust behavior in economic management law. China's anti-unfair competition law focuses on legislation from the perspective of management, which can be seen from the definition of management organs and departments in the law, the name of the law, and the chapter of legal responsibility, which stipulates civil responsibility, administrative responsibility, criminal responsibility and a separate chapter of "supervision and inspection". The Anti-Unfair Competition Law complements the Trademark Law, Patent Law and other laws, and is perfect and isomorphic with * * *, forming a standardized legal system of socialist market economy. In economic law, market economy and socialist legal system. All occupy an important position.
(2) One of the basic laws regulating the relations of socialist market economy.
Competition laws such as anti-monopoly law and anti-unfair competition law all belong to the category of economic law. They are different from civil law and commercial law. Generally speaking, the socialist market economy is an overall social adjustment system that realizes self-regulation by means of civil law and commercial law, and realizes business order by means of economic law composed of anti-unfair competition law, that is, the state represents the whole society and punishes all kinds of illegal and criminal acts that undermine the market economic order. In other words, the civil and commercial law is a law to protect the legitimate rights and interests of the parties (including operators) in civil relations, so the economic law is a law that focuses on safeguarding the public interests. As an important part of economic law, anti-unfair competition law is a law that uses various legal means to punish all kinds of unfair competition behaviors that undermine the normal competition order, protect and encourage fair competition, and ensure the healthy development of socialist market economy. Therefore, anti-unfair competition law, as a whole social adjustment system, is an important means to realize the order of socialist market economy.
(three) to solve the legal gap between civil law and intellectual property law.
As far as the relationship between anti-unfair competition law and other laws is concerned, the relationship between anti-unfair competition law and civil law is the relationship between special law and general law, according to the principle that special law is superior to general law. Where there are provisions in the Anti-Unfair Competition Law, the Law shall apply; Where there is no provision in the Anti-Unfair Competition Law, the civil law shall apply; The relationship between anti-unfair competition law and trademark law, patent law, product quality law, copyright law and consumer rights protection law is the relationship between general law and special law. Where there are provisions in the Trademark Law, Patent Law and other special laws, it shall be handled in accordance with the Trademark Law and Patent Law; Acts of unfair competition with universal significance that are not stipulated in the trademark law, patent law and other special laws. Regulation and adjustment of anti-unfair competition law. As stipulated by the World Intellectual Property Organization: "The law prohibiting unfair competition actually protects those rights that are not protected by patent law, trademark law and other special laws and should be protected."
China's anti-unfair competition system has three characteristics in protecting business reputation and business secrets: First, the scope of protection is wider. Including the reputation of registered trademarks, the unique names of well-known commodities, packaging and decoration, enterprise names, places of origin and other identification marks, as well as business secrets such as technical information and business information that are not known to the public, can bring economic benefits to the obligee and are practical and kept confidential by the obligee. Secondly, the unfair competition behaviors against the above-mentioned protected objects are enumerated. Including counterfeiting registered trademarks of others. Third, the legal protection of the dual-track system. The infringed obligee may request both administrative protection from the administrative department for industry and commerce and judicial protection from the people's court.
The protection of anti-unfair competition system on business reputation and business secrets shows that it is a supplement to the protection of trademark system and patent system.
The supplementary protection function of the anti-unfair competition system to the intellectual property system is not only reflected in the protection of intangible property that is not protected by intellectual property, but also in the maintenance of intellectual property itself. The anti-unfair competition system is famous for its broad inclusiveness, and all acts that violate the principles of voluntariness, equality, fairness, honesty and credit and recognized business ethics are prohibited by it.
Second, the role of anti-unfair competition law
The function of law is closely related to the purpose of law, and the purpose of law (or legislative purpose) is the legal function that legislators should play. Article 1 of China's Anti-Unfair Competition Law stipulates: "In order to ensure the healthy development of the socialist market economy, encourage and protect fair competition, stop unfair competition, and protect the legitimate rights and interests of operators and consumers. Make this law. " This is the legislative purpose of the anti-unfair competition law, that is, the role of the anti-unfair competition law.
(1) Encourage and protect fair competition and stop unfair competition.
Market economy is both a competitive economy and a legal economy. Market economy is inseparable from competition and the rule of law. As the basic operating mechanism of market economy, competition exists in the whole process of commodity production and trading, and a commodity economy without competition is unthinkable. But if there is competition, there will be unfair competition, so we must encourage and protect fair competition by legal means. Stop unfair competition. As far as the actual situation in our country is concerned, due to the inertia of people's thoughts and behaviors caused by decades of planned economy, there are widespread phenomena of not thinking about competition, not daring to compete and not competing, so the law should not only protect fair competition, but also encourage fair competition.
Competition is a natural development under the market economy. It is possible to go to the opposite side in two aspects: first, the scale benefits brought by the inevitable concentration of production and capital caused by free competition will stimulate the further development of concentration to form a monopoly, which will lead to competition in a larger scope or region, but competition will be difficult to exist in the original scope and region, thus destroying the competitive market structure; First, because using unfair competition means is often more profitable than using fair competition means, it not only makes those who have made profits through unfair means more greedy and intensified, but also makes honest and trustworthy operators lose confidence. If left unchecked and without external constraints, unfair competition will become a normal operation and fall into a vicious circle. Therefore, in order to maintain the normal competition order and give full play to the positive role of competition, unfair competition must be prohibited and cracked down according to law. Only by severely cracking down on unfair competition can fair competition be protected and encouraged.
1, protect fair competition
The Anti-Unfair Competition Law provides equal legal protection for all market players according to the principle of fair competition. Market participants are equal in qualification, but there are differences in scale, capital, technology and manpower in objective reality. If the law does not guide and regulate them, these objective differences can easily lead to unfair competition. The Anti-Unfair Competition Law pays attention to the fairness and balance of market competition at the same starting line: for large enterprises and well-known enterprises, it is stipulated to protect the reputation and intellectual property rights of their enterprises and commodities from counterfeiting and other acts in the competition; For small and medium-sized enterprises, it is forbidden to use the monopoly operation of enterprises and the dumping and monopoly behavior of large enterprises to prevent large enterprises from using their powerful economic strength to crowd them out and make them face the threat of survival. Ensure fair opportunities, encourage and protect small enterprises and individual operators, and show their talents in market competition by virtue of their own advantages.
The Anti-Unfair Competition Law also provides a series of practical legal measures, which provides an effective legal means to protect fair competition. It is stipulated that the administrative department for industry and commerce of the people's government at or above the county level is the supervisory department of the anti-unfair competition law; It stipulates the legal liability for violating the principle of fair competition, that is, the principle of economic, administrative and criminal legal liability and punishment; The law also authorizes operators who have been harmed by unfair competition to bring a lawsuit directly to the people's court, demanding to stop the illegal behavior and compensate for the losses. These regulations help to encourage and protect the fair competition behavior of legal operators, support them to actively fight against unfair competition behavior, and safeguard their legitimate rights and interests and fair competition order in the market.
2. Prohibit unfair competition.
Anti-unfair competition law, as an effective means to protect fair competition, also regulates and restricts economic illegal acts of unfair competition, political corrupt acts of abusing administrative power, criminal acts of unfair competition and criminal acts of law enforcement.
First, the Law on Unfair Competition clearly restricts the illegal acts that prohibit unfair competition, and makes specific provisions on unfair competition acts such as counterfeiting, fraud, monopoly, commercial bribery, collusive bidding and illegal sales with prizes. The Anti-Unfair Competition Law draws a clear legal boundary between fair competition and unfair competition, and provides detailed, strict and clear standards for fair competition in the market for commodity operators. Those who violate the regulations and engage in unfair competition shall be disciplined and given a warning. These specific prohibitive clauses provide an operable legal basis for identifying and investigating unfair competition.
Second, the Anti-Unfair Competition Law strictly regulates the abuse of administrative power. As China is still in the primary stage of the development of socialist market economy, there are often phenomena of combining officials with businessmen, taking advantage of their powers or taking administrative measures to participate in economic activities and engaging in unfair competition. In some places, based on the concept of local protectionism and the economic interests of this department, the government and its subordinate departments abuse administrative rights and restrict competition from time to time. In order to prohibit this abuse of administrative power, the Anti-Unfair Competition Law lists the abuse of administrative power to restrict competition, monopolize and protect local interests as prohibited means of unfair competition, and stipulates the economic and administrative legal responsibilities and punishment principles for the abuse of administrative power, which is a strict containment to stop the government and its subordinate departments from engaging in market transactions by unfair means and harming competitors, and enhances the seriousness of prohibiting unfair competition.
Third, the Anti-Unfair Competition Law provides clear sanctions for criminal acts of unfair competition and criminal acts of supervisors and inspectors. Most acts of unfair competition are illegal acts against morality, but some acts of unfair competition violate the law and constitute a crime, so criminal responsibility should be investigated. The anti-unfair competition law prohibits and punishes illegal acts of unfair competition in trading activities, corrupt acts of abusing administrative power when the government participates in economic activities, criminal acts of unfair competition and criminal acts of law enforcement, so as to achieve the direct purpose of formulating the anti-unfair competition law and realize its legislative value.
(two) to protect the legitimate rights and interests of operators and consumers.
For honest and trustworthy operators, anti-unfair competition law is their patron saint. Legal management and unfair competition are fundamentally opposed. With the "freedom" of unfair competitors' business activities, there is no freedom of honest and trustworthy operators. Only by cracking down on unfair competition and depriving them of the "freedom" to conduct business activities by means of unfair competition can honest and trustworthy operators have the freedom to conduct business activities. The essence of anti-unfair competition law is to protect the legitimate rights and interests of operators. Oppose unfair competition. Honest and trustworthy operators are the biggest beneficiaries.
The Anti-Unfair Competition Law aims to prevent the rights of other operators from being infringed by curbing unfair competition, thus protecting the legitimate rights and interests of operators. There are usually two kinds of protection for the interests of operators: the first is specific protection. That is, an operator's unfair competition behavior is aimed at a specific object, and this specific operator's legitimate rights and interests have suffered losses because of unfair competition behavior. The Anti-Unfair Competition Law prohibits such unfair competition, thus achieving the purpose of protecting specific operators. Mainly manifested in the prohibition of counterfeiting other people's registered goods and unauthorized use of other people's enterprise names. The second is unspecified protection. That is, an operator's unfair competition behavior is not aimed at a specific competitor, but at the illegal behavior of uncertain and numerous competitors. The result of its infringement on the legitimate rights and interests of others is not a specific enterprise or individual, but many enterprises or multiple operators. It is to protect the legitimate rights and interests of unspecified competitors to prohibit such unfair competition. All operators who are infringed by unfair competition should be protected. The protection of the anti-unfair competition law to this kind of unspecific behavior is mainly manifested in the provisions prohibiting illegal prize-winning sales, crowding out competition, false advertising, exclusive restrictions, local monopoly and other unfair competition behaviors. Its role is very obvious: according to incomplete statistics, the number of illegal cases of manufacturing and selling fake and shoddy goods was investigated and dealt with 1999 * *, reaching 16. 850,000 pieces, an increase of 57% over the same period of 1998. 88%, the case value is 29. 600 million yuan, the amount of fines and confiscations is 4. 900 million yuan; Investigate and deal with the total value of fake and inferior materials 19. 850 million yuan, and smashed three dens 129 13, among which 3,089 major cases with a case value of100000 yuan or more were investigated and dealt with, and 2 14 major cases with a case value of100000 yuan or more were investigated and dealt with, thus preventing greater economic losses for the majority of operators.
The Anti-Unfair Competition Law also protects the interests of consumers in two ways: the first is to prohibit some unfair competition and directly protect the interests of consumers. For example, some fake and shoddy goods, tying goods against consumers' wishes, will reduce consumers' direct economic losses or eliminate direct harm to their health. The second is indirect protection, that is, by prohibiting some unfair competition, protecting the legitimate rights and interests of operators and ultimately protecting the interests of consumers. Such as commercial bribery, increased operating costs, leading to rising commodity prices. Consumers will inevitably suffer economic losses when they buy these goods with high quality and high price. Therefore, stopping commercial bribery is not only to protect the legitimate rights and interests of operators, but also to prevent operators from passing on the cost of commercial bribery to consumers. Obviously, this is a way to indirectly protect the legitimate rights and interests of consumers. 1999 China * * * investigated and dealt with 6 cases of infringement of consumers' rights and interests. 70,000 pieces, an increase of 63 pieces over the same period of 1998. 0 1%, the case value is 500 million yuan, and the amount of fines and confiscations is 76.43 million yuan, of which 85% are cases involving commodity consumption and 0/5% are cases involving service consumption. The national industrial and commercial administration system (including consumer associations at all levels) accepts consumer complaints and appeals. 230,000 pieces, with a mediation success rate of 93. 4%, saving consumers 26. 8.7 billion yuan.
(C) to ensure the healthy development of the socialist market economy
The goal of China's economic reform is to establish a socialist market economic system. As a market economy, it must have the following points; (1) Recognize the independence of market entities such as individuals and enterprises; (2) Establish a competitive market system in which prices are formed by the market to ensure the free flow of various commodities and production factors, and the market plays a fundamental role in resource allocation; (3) Establish an effective macro-control mechanism; (4) There must be complete economic laws and regulations; (5) Abide by the prevailing rules and practices in international economic exchanges.
Anti-unfair competition law is almost related to these five points: the independence of subjects is the premise of competition, the market system of competition is the requirement of competition itself, macro-control should also be conducive to the formation of competition mechanism, anti-unfair competition law is an integral part of the legal department of basic economic law, and the prevailing rules and practices in international economic exchanges also include anti-unfair competition law. Therefore, the anti-unfair competition law is closely related to the socialist market economy. The most fundamental function of anti-unfair competition law is to ensure the healthy development of socialist market economy.
To develop the market economy, the most important thing is to cultivate and develop the market system and give play to the basic role of the mechanism in resource allocation. At present, the construction of market economy system in China is in the primary stage. First, focus on developing the factor market, standardize market behavior, break the division and blockade of regions and departments, oppose unfair competition, create an environment of equal competition, and form a unified, open and orderly market. The enactment of the Anti-Unfair Competition Law meets the needs of cultivating and developing the market system, building a unified, open, competitive and orderly market economy and ensuring the development of the market economy. In addition, competition is the general law of commodity economy, the core of market activities and the most important adjustment means in market economy. Because the market economy should follow the law of value of commodity activities and use the principle of law of value to promote and realize the effective, reasonable and optimal allocation of resources. The role of the law of value is realized through fair competition, and the realization of value cannot be separated from the mechanism of fair competition, which is the most basic operating mechanism of market economy. If the legitimate competition in social and economic life is excluded or weakened, the market economic mechanism will have structural and overall obstacles, the market economic order will be chaotic and the market economy will not develop smoothly. Therefore, in order to develop the market economy and ensure its orderly and healthy development, measures must be taken to stop acts that hinder competition. It is very important to maintain and promote fair competition and protect the healthy development of market economy through anti-unfair competition legislation.
In a word, the function of anti-unfair competition is to stop unfair competition, maintain fair competition order, protect the legitimate rights and interests of operators and consumers, and ensure and promote the healthy development of market economy.
Notes and references:
① See Beijing Youth Daily1March 996 16.
② See Ma Xiushan's Patent System and Unfair Competition, Intellectual Property 1993 No.4, p. 19.
③④99 The industrial and commercial system has achieved fruitful results in counterfeiting and rights protection, China Consumer News, March 3, 2000.