论知识产权法与反不正当竞争法的适用关系

The Application Relations between Intellectual Property Law and Anti-unfair Competition Law

将法律之间交叉领域的基本关系概括为一般法与特别法的关系以及一般法律竞合的关系,前者适用规则为特别法优先于一般法,后者当事人可自由选择适用。认为知识产权法与反不正当竞争法之间整体上不存在一般法与特别法的关系;就具体法条而言,大多数相关法条之间也不属于一般法规与特别法规的关系,应按照一般法律竞合处理两法交叉领域的法律适用问题,由当事人自由选择。如此总结知识产权法与反不正当竞争的关系,既能理顺并简化法律的适用,又能反映我国司法实践。

In this article, the relations between provisions in legal overlapping areas are reduced to two types： general/special provisions, and normal legal concurrences. They have different application rules. If a special provision differs from a general provision, the special provision shall prevail over the general provision. As for normal legal concurrence, it＇s up to the plaintiff to decide which provision to apply to sue. It＇s contended by this article that the application relations between IP Law and Anti-unfair Competition Law is not general/special provisions but normal legal concurrence. This way, the application of the two law＇s overlapping areas would be simple and it conforms to our judicial reality.