论竞争行为不正当性的“经济性”评判标准

The “Economic” Criterion for Unfairness of Competitive Behaviors

竞争行为的不正当性评判标准应当是"经济性"标准。只有当鼓励某一竞争行为的存在,将损害经济效率时,该行为才应被认定为损害了竞争秩序,进而被认定为违反反不正当竞争法。"经济性"标准可以良好地解释反不正当竞争法从私法向经济法的演进历史;也可以良好地解释和解决反不正当竞争法一般条款在适用中的利益平衡问题。

The ＂Economic＂ criterion should be the judgment criterion for the unfairness of competitive behaviors. Only when encouraging the existence of a specific kind of competitive behavior would damage the economic efficiency, that kind of competitive behavior should be considered as damaging competition order, then violating anti-unfair competition law. The ＂Economic＂ criterion could well explain the evolution history of the legal nature of anti-unfair competition law from private law to economic law. It also could well explain and resolve the issues of interest balancing during the application of general clause of anti-unfair competition law.