关于竞争行为正当性评判泛道德化之反思

Introspection on the Moral Criteria in Evaluating Competitive Conducts

就主流理论和法院实践而言,道德解读在反不正当竞争法尤其是其一般条款方面占有重要地位。但是竞争有其不同于道德评价的内在规律,在运用一般条款时,应当尊重反不正当竞争法的文本,关注行为对竞争秩序的客观影响,而不应将道德感作为判断竞争行为正当性的终极标准。

Mainstream research and dominating court practice view rules of Competition Law, especially its catch-all provision, as heavily moral-loaded. Yet competition must be understood as a regime following its own path other than that of any moral system. To apply the catch-all-provision properly requires respect to the wording of Competition Law as well as focusing on the objective influence upon the competitive order caused by the competitive behavior in question. The ultimate criteria for the justification of competition conducts, as the article shows, shall not be set by morals.