论折扣与不正当竞争

On Discount and Unfair Competition

在市场经济条件下,折扣是一种有效的、合法的竞争手段,通常与不正当竞争无关。我国现行法对折扣的规范并未揭示出这种经济现象的本质特征,尤其无法与非法的回扣相区别。折扣与回扣的实质区别,在于折扣的给付是事出有因的,而且折扣率是比较低的。中国竞争法宜借鉴德国的做法,对各类折扣规定一个最高比率。经营者违反最高折扣率的规定从事竞争的,构成不正当竞争。

In market economy, discount is an effective and legal way of competition and usually involves no unfair competition. However, the regulations over discount issues in Chinese laws fail to reveal the intrinsic characteristics of this economic phenomenon, especially the differences between legitimate discounts and illegal commissions are not mentioned. The author believes that the fundamental differences between discounts and commissions lie in the fact that every discount has a supporting reason, and that discount rates are always comparatively low. Our legislation should use Germany law for reference and set ceilings on different discounts. If the ceilings regulation is violated in competition, unfair competition can be determined.