反不正当竞争法的“不可承受之轻”——论一般条款的缺失及原则受限的改进

On Unbearable Lightness in the Law against Unfair Competition——On the Absence of General Terms and the Improvement of Principle Constraints

我国《反不正当竞争法》第2条第2款一直是个有争议的条款。它不是一般条款,又因内设"违反本法规定"而限制了原则条款的扩展适用。由此,这个条款束缚了行政机关规制"其他不正当竞争行为"的手脚,也使司法机关裁量其他不正当竞争行为的法律依据模糊不清。在新一轮的修法过程中,首要的问题是建立一般条款并协调与之相关的概念。

Article 2, paragraph 2 in the Law of the People＇s Republic of China against Unfair Competition has always been arguable. It is not a general term. Because of the inner act ＂regulation for violating this Law＂, the expanded application of principle provisions has been restrained. Therefore, this term has become a shackle of administrative organs in regulating ＂other acts about unfair competition＂, and also an ambiguous rule of judicial institutions in judging other acts of unfair competition. Thus, the most principal task of the new round law amendment is to establish the general terms and relevant concepts.