China's Anti-Unfair Competition Law, 1993, is a mixed law, which contains anti-monopoly, consumer rights, anti-commercial bribery and other provisions. The draft for revision of the Anti-Unfair Competition Law and the revised draft of the State Council have added a provision on technical measures. These contents have nothing to do with intellectual protection activities and should be deleted.
● When amending the Anti-Unfair Competition Law, we should mainly refer to the Paris Convention and the Agreement on Trade-related Aspects of Intellectual Property Rights of the World Trade Organization, and stipulate that counterfeiting, false propaganda, commercial slander and stealing other people's trade secrets are prohibited on the premise of providing the general terms of "good faith". In terms of intellectual property protection, we don't need to raise our standards, let alone make new rules in a hurry.
China's Anti-Unfair Competition Law was passed by the National People's Congress Standing Committee (NPCSC) in September 1993, and it was implemented in February of that year. 20 16 1 1 the revised draft of the anti-unfair competition law was adopted and submitted to the National People's Congress Standing Committee (NPCSC) for deliberation. 2065438+In February 2007, the National People's Congress Standing Committee (NPCSC) reviewed the Revised Draft for the first time. Here, several related issues about the revision of the anti-unfair competition law are discussed, in order to attract the attention of all sectors of society and legislative departments and further improve the revision of the anti-unfair competition law.
Anti-unfair competition law belongs to intellectual property law.
To amend the Anti-Unfair Competition Law, we must first clarify the nature of this law. At present, there is no clear understanding of whether the Anti-Unfair Competition Law belongs to intellectual property law in China's theoretical and practical circles. However, no matter according to the relevant international conventions or the legislation of most countries, the anti-unfair competition law belongs to the intellectual property law and is an integral part of the intellectual property legal system.
According to Article 2 of the Convention on the Establishment of the World Intellectual Property Organization (1967), intellectual property rights should include rights related to works, inventions, industrial designs, business marks and "protection against unfair competition". According to this definition, "protection against unfair competition" not only belongs to the category of intellectual property rights, but also belongs to the same object of protection as works, inventions, industrial designs and commercial marks.
As early as the Paris Convention for the Protection of Industrial Property, the objects of "industrial property" include invention patents, utility models, designs, commodity trademarks, service trademarks, trade names, marks of origin or marks of origin, and prevention of unfair competition. Since the 1990s, the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the Agreement) of the World Trade Organization has included the provisions of the Paris Convention on Industrial Property, including the provisions on stopping unfair competition, into its scope. On this basis, article 39 of the agreement stipulates the protection of trade secrets under the framework of stopping unfair competition.
Among the common law countries, Britain determined the rules to stop trademark counterfeiting as early as the beginning of17th century, and based on this, it formulated the Counterfeiting Law. With the change of business model, Britain's "anti-counterfeiting law" includes not only stopping counterfeiting business signs, but also stopping commercial slander and false propaganda, thus becoming Britain's anti-unfair competition law. In the United States, the federal anti-unfair competition law is article 43, paragraphs 1 and 3 of the Lanham Act. The former stipulates to stop counterfeiting, false propaganda and commercial slander, while the latter stipulates to stop diluting commercial signs. From 65438 to 0995, american law institute summarized the federal and state anti-unfair competition laws and promulgated the Restatement of the Anti-Unfair Competition Law, which systematically stipulated the prohibition of counterfeiting, false propaganda, commercial slander and dilution, as well as the protection of trade secrets and image rights.
Among the civil law countries, France enacted the Civil Code in 1804, and provided protection for counterfeiting according to Article 1382 of the Tort Liability Law. 1857, France also enacted the world's first registered trademark law according to article 1382. As for Germany, the Anti-Unfair Competition Law has added some contents about consumer protection, but the provisions on stopping counterfeiting, false propaganda, commercial slander and stealing trade secrets are still the main body of the Anti-Unfair Competition Law. Although there are some other contents in Japan's Law on the Prevention of Unfair Competition, the provisions on intellectual property rights constitute the main body of this law.
China's Anti-Unfair Competition Law enacted in 1993 not only meets the requirements of the Paris Convention on stopping unfair competition, but also meets the requirements of the Agreement. It is generally believed that the enactment of the Anti-Unfair Competition Law from 65438 to 0993, together with the previously enacted Trademark Law, Patent Law and Copyright Law, constitutes the modern intellectual property legal system in China.
But on the whole, the Anti-Unfair Competition Law enacted by 1993 is a mixed law, which contains anti-monopoly, consumer rights and anti-commercial bribery provisions in addition to the results of intellectual activities. On this basis, provisions on technical measures have been added to the Revised Draft of the Anti-Unfair Competition Law and the Revised Draft of the State Council. But these contents have nothing to do with intellectual protection activities and should be deleted.
Anti-unfair competition law is not anti-monopoly law.
Anti-unfair competition law and anti-monopoly law are laws that regulate market competition. However, the two are completely different in legal nature.
Specifically, the Anti-Unfair Competition Law begins with stopping the counterfeiting of commercial marks, and gradually incorporates the prevention of commercial slander and false propaganda, as well as the protection of commercial secrets. In the case of counterfeiting, commercial slander, false propaganda or stealing commercial secrets, it should be the relevant market participants who put forward their own requirements to stop unfair competition. In this sense, the right to stop unfair competition is a private right, and the anti-unfair competition law belongs to the category of private law. The anti-monopoly law is a law aimed at market monopoly. Its purpose is to break the horizontal and vertical monopoly organizations and ensure sufficient competition space in the market. Usually, when there is a horizontal or vertical monopoly organization or alliance, the public authority should come forward to dissolve the corresponding monopoly organization or alliance or stop the related monopoly behavior. In this sense, the power to stop market monopoly is a kind of public power, and the anti-monopoly law also belongs to the category of public law.
However, in China, due to legislative and theoretical reasons, many people have confused the anti-unfair competition law with the anti-monopoly law for a long time.
Unfortunately, article 1 1 of the revised draft anti-unfair competition law still retains the tying of goods in the current anti-unfair competition law. This point has been stipulated in item 5 of article 17 of the current anti-monopoly law, and the provisions on tying goods in the revised draft should be deleted.
Anti-unfair competition law is not a consumer protection law.
Anti-unfair competition law is a law to protect intellectual activities, which is not directly related to the protection of consumers' rights and interests. Stop counterfeiting, false propaganda and commercial slander, although objectively safeguard the interests of consumers, but according to the anti-unfair competition law, consumers are not qualified to bring a lawsuit. The anti-unfair competition laws of most countries in the world stipulate that only competitors who have been harmed by unfair competition are eligible to file a lawsuit.
The theory and practice of China's anti-unfair competition law are greatly influenced by Germany. For example, article 13 of the current Anti-Unfair Competition Law stipulates that in some cases, competitors may not engage in sales with prizes. China already has a separate law on the protection of consumers' rights and interests, and the provisions on sales with prizes should be deleted in the revision of the Anti-Unfair Competition Law.
Anti-unfair competition law is not an anti-commercial bribery law.
1993 enacted the Anti-Unfair Competition Law, which stipulated the contents of commercial bribery under the specific historical conditions at that time. According to the provisions of Article 8, business operators shall not use financial or other means to bribe the sale or purchase of commodities.
Generally speaking, when China enacted the Anti-Unfair Competition Law in 1993, the criminal provisions on commercial bribery were not perfect. However, in 1997, a series of crimes related to commercial bribery are stipulated in the criminal law. Subsequently, the provisions on commercial bribery crime and its punishment have become increasingly perfect. Under the premise that the criminal law has made such detailed provisions on the crime of commercial bribery, there is absolutely no need to amend the Anti-Unfair Competition Law, and define "commercial bribery", which is originally a crime, as the unfair competition behavior of market participants.
Anti-unfair competition law is not a technical measure protection law.
Although intellectual property law, especially patent law, is closely related to innovation and scientific and technological development, technical measures themselves are not "interests" protected by intellectual property law. However, with the development of computer technology and network communication technology, technical measures are of great significance for the dissemination of works in the network environment. Therefore, from 65438 to 0996, the World Intellectual Property Organization concluded the Copyright Treaty and the Performances and Phonograms Treaty, which brought the protection of technical measures into the field of copyright law or copyright law. However, in the two treaties, the protection of technical measures is the obligation of member States, which is equivalent to protection in the sense of tort liability law. The protection of technical measures is not the "right" enjoyed by copyright owners or copyright owners.
In recent years, with the development and change of Internet business model, the competition among Internet enterprises has become increasingly fierce, and there have been some phenomena of obtaining commercial benefits by technical means. Many Internet companies, experts and scholars have actively promoted some departments in the State Council, trying to include the protection of technical measures in the scope of stopping unfair competition.
There are at least two problems here. First, the anti-unfair competition law protects the fruits of intellectual activities, not technical measures. If intellectual property rights, including the right to stop unfair competition, are produced by intellectual activities, then the technical measures set by market participants will obviously not produce intellectual property rights. Second, this provision violates the principle of "technology neutrality" in intellectual property legislation. There is no need to add provisions on technical measures in the anti-unfair competition law.
"General Conditions" in good faith should be applied with caution.
Honesty and credit is the basic principle that civil subjects should abide by when engaging in civil activities. According to the Paris Convention and the practices of many countries, the general principle of "honesty and credit" is also stipulated in Article 2, paragraph 1 of China's Anti-Unfair Competition Law: "Operators should follow the principles of voluntariness, equality, fairness, honesty and credit in market transactions and abide by recognized business ethics."
On the relationship between "general clauses" and "specific cases", the current Anti-Unfair Competition Law does not provide space for the application of "general clauses" outside specific cases. Paragraph 2 of Article 2 stipulates: "Unfair competition as mentioned in this Law refers to the acts of business operators that violate the provisions of this Law, damage the legitimate rights and interests of other business operators and disrupt social and economic order." The acts specified in this Law refer to the acts specified in Chapter II of this Law.
Although according to the current anti-unfair competition law, there is no possibility of applying the "general terms" alone. However, in recent years, the principle of "honesty and credit" has been widely used in our society, and the atmosphere of "unfair competition behavior" has expanded.
However, when many experts, scholars, administrative officials, enterprises, lawyers and judges advocate "general clauses" and are keen to label some competitive behaviors as "unfair competition" according to the principle of "good faith", we should perhaps pay attention to another phenomenon, that is, the anti-unfair competition laws of some countries only stipulate specific cases, but there are no "general clauses". For example, the United States federal anti-unfair competition law "Lanham Law" and Japan's "Prevention of Unfair Competition Law". In 2003, Germany amended the Anti-Unfair Competition Law, and made two amendments to the relationship between general clauses and specific cases. First, the original "behavior against good customs" was changed to "unfair business behavior", thus weakening the color of business ethics. Second, by listing 1 1 kinds of unfair business practices, the provisions of the general terms and conditions are reflected. Only when 1 1 concrete examples have been exhausted and it is really necessary to standardize can the general clauses be applied. According to the legislative purpose, the application of general clauses should be an exception.
In fact, careful application of the "General Clauses" will help to enhance the market participants' expectations of whether their actions are illegal, and then help to establish a market competition order. Perhaps we should ask, after the internationally recognized acts of unfair competition, in addition to the intervention of trademark law, anti-monopoly law and consumer protection law, what kind of intervention we want to make to the existing market competition order, or to what extent.
Revising the Anti-Unfair Competition Law in Accordance with International Conventions
The theory and practice of China's anti-unfair competition law are deeply influenced by Germany. However, when revising the anti-unfair competition law, we should understand and think about the theory and practice of anti-unfair competition law all over the world from a broader international perspective.
In the past 30 years, China has been aiming at meeting the basic principles and minimum requirements of international conventions when formulating and amending intellectual property laws. According to this practice, when amending the Law against Unfair Competition, we should mainly refer to the Paris Convention and the Agreement, and stipulate that counterfeiting, false propaganda, business slander and stealing other people's business secrets are prohibited on the premise of providing the general principle of "honesty and credibility". In terms of intellectual property protection, we don't need to raise our standards, let alone make new rules in a hurry.