行业协会社团罚:兼论反不正当竞争法的修改完善

Trade Associations' Punishments: And Amendment of the Anti-unfair Competition Law

我国反不正当竞争法法律责任的设置不足以遏制不正当竞争,可以尝试以行业协会社团罚的软法机制来弥补硬法的不足。行业协会有反不正当竞争的内在动力、能力和优势,而且其社团罚的约束在本质上是一种信用约束,可以对会员形成一种长期的心理强制,有很强的约束力。理论上,行业协会社团罚是社会自治的一种方式;实践中,我国有在反不正当竞争法中规定行业协会社团罚的需要。软法与硬法可以形成耦合,作为软法的社团罚也可以与反不正当竞争法的法律责任机制相耦合。德国很早就在理论和司法判决中承认了社团的处罚权,我国在修订反不正当竞争法时,也可以考虑对行业协会社团罚予以承认、规制和救济。

The legal liability set by the Anti- Unfair Competition Law is not sufficient to stop the unfair competition. It is feasible to use the trade associations＇ punishment which is a kind of soft law to cover the shortages of the hard law. The trade associations have a built- in incentive,capacity and advantages to stop the unfair competition. The restraint of associations＇ punishments is credit restraint which will form a long term psychological compulsion,as a result,they have very strong binding force. In theory,the associations＇ punishment is a way of social autonomy; In practice,the associations＇ punishments are needed to be read in the Anti- Unfair Competition Law. The soft law and the hard law can be coupling. The associations＇ punishments as soft law can be coupling with the legal liability regulated by the Anti- Unfair Competition Law. In Germany,the right of the associations＇ punishments has been admitted in legal theory and judicial practice for a long time. When amending our Anti- Unfair Competition Law,we could consider to admit,regulate and relieve the trade associations＇ punishments.