【作者】 李洁；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 经济法学， 2005， 硕士

【摘要】 认定不正当竞争行为是实施反不正当竞争法的首要、和关键问题。本文从四个部分对不正当竞争行为及其法律认定进行分析。第一部分对不正当竞争行为的分析是从两个方向进行的。一方面,对不正当竞争行为“不正当”之所在从经济公平、商业伦理道德和法律正义角度进行阐述。另一方面,对不正当竞争行为与一般侵权行为、限制竞争行为、垄断行为和侵犯知识产权行为的界限进行划分。第二部分通过说明认定不正当竞争行为需要一般条款的原因和比较各国一般条款的规定,对我国认定不正当竞争行为的一般条款进行讨论。第三部分从程序上对不正当竞争行为法律认定的模式、机构和诉讼主体进行阐述。第四部分主要总结不正当竞争行为的最新发展趋向和竞争法的对策。希望通过本文的论述,清晰的说明不正当竞争行为的内涵、外延和发展,对竞争法控制不正当竞争行为的实际操作有所帮助。更多还原

【Abstract】 Since our market oriented economy is still under its way, there arenumerous improper competitions existed, which means the research on the lawagainst improper competition bears very important value to secure the normaland healthy economic development. What is the so called impropercompetition can be regarded as the core and fundamental principles of the lawagainst improper competitions. The author will elaborate on this question inthe following four chapters:The first chapter is about the classification and definition of the impropercompetition, which includes three sections.In the first section, the author set up the angle of viewpoint, which is alsocan be called the reference system for the so called improper.Firstly, it is against the principle of fairy play. The moral discipline is theinner demand of market oriented economy, which proves the rationality of therestriction of freedom. All the economic activities in the name of right moraldirection all embody the economic justice, through which means we canmaximize the economic net gain.Secondly, it is against the commercial value. It is a basic rule to obey therecognized commercial value. The author argues that it is feasible to adopt thearguments held by George ?M?Now Nation and Charles ?W Lamb ?, whichincludes the principle of utilitarianism, the principle of moral right and theprinciple justified method. And the improper competition is against all thethree above.Thirdly, it is against the justice of law. There is some inner and fixedinterrelation between the law and economy. Many basic and necessaryprinciple of economic justice can transform into the legal norms. The lawagainst the improper competition which confirms the moral value such as fairyplay, bona fide and voluntary legalizes the principles of economy and offersthem legal enforcement.The second section is differentiating the improper competition with otheractivities against competition.Firstly, we should discern the difference between the impropercompetition and the activity restrains competition. The author holds that thereare some differences between these two concepts.Secondly, there is some difference between the improper competitionswith monopolizing. But the law against improper competition doesn’t clarifythese two activities, though the objects, the subjects and the forms are alldifferent.Thirdly, we should recognize the difference between the propercompetition and the protection for intellectual property, which are different inthe origin, and means of protection and the protecting domains.Finally, the improper competition is different with general torts.The third section is about whether the competition relation can affect theclassification of improper competition. Judging from the legal practice bothfrom the Anglo-Saxon system and the continental system, it is going to give uplooking the competition relation as the prerequisite for improper competition.The second chapter is about the legal norms or standards by which wediscern the improper competition, which includes four sections.The first section is the reason for the general requirement of law againstimproper competition.Firstly, it is the demand of the uncertainty of law, which includes theuncertainly of the legal concepts, the uncertainty of the legal rules and theuncertainty of the legal principles. In fact, the improper competition itself is anuncertain activity.Secondly, it is the demand of the incomplete law. There are many reasonsfor the law to be incomplete. On one hand, the law can’t list all the situationsand just list several of them; on the other hand, the law is set up clearly againstsome activities, but can’t include all the materials.The second section concerns whether there is some general clause in ourcountry to discern improper competition. Most of scholars in our countryholds positive attitude towards this. The author argues that the answer to thisquestion is negative, which means there is no general clause in our legalregulations.The third section is the review on comparative research on the impropercompetition. Paris Convention for the Protection of Industrial Property (1883)and some other foreign legislations show that the principle of bona fid isuniversal.The forth section focus on the general clause to discern the impropercompetition in our country. The law against improper competition nowadays isto protect the rules of competition and the general value of the public. Underthe fixed circumstance, it is not perfect to emphasis no matter bona fide orgood customs. The more attention we paid to the privet right of competitor, themore work need to be done for the protection of rule of competition. And theauthor puts forward some concrete suggestions in that area in order to polishthe concerning legislation and do some remedy for the general clause.The third chapter is the legislation about the improper competition in ourcountry, which embodies three parts.更多还原