论反不正当竞争视域下比较广告之法律规制--兼对《反不正当竞争法》的修订建议

On Legal Regulation of Comparative Advertising from the Perspective of Anti-Unfair Competition Law: Suggestions for Amending The Anti-unfair Competition Law

比较广告负面性的主要表现是不正当竞争,有可能构成虚假宣传、商业诋毁及商业混同等不正当竞争行为。规制比较广告的立法既要考虑竞争价值,也要考虑自由价值,但大多数国家更为强调竞争价值,我国也是如此,这样做具有充分的合理性。反不正当竞争法是规制比较广告的主导性法律,在实践上,域外大多数国家在规制比较广告方面都将反不正当竞争法置于主导地位,而将广告法置于从属地位,在理论上分析,反不正当竞争法在规制比较广告方面具有明显的优越性。我国《反不正当竞争法》尚无规制比较广告的专门条款,一些间接性条款尚不能满足规制需要,因此,我国在修订《反不正当竞争法》时应增列专门条款,以突出其在规制比较广告方面的主导性角色。

The main manifestation of the negativity of comparative advertising is unfair competition, which is likely to constitute unfair competition behaviors, such as false publicity, commercial defamation, and commercial confusion. Legislation which regulates comparative advertising should consider not only the competition value, but also the freedom value. However, most countries are putting a stronger emphasis on the competition value, so is it in China. Such practice is sufficiently reasonable. The anti -unfair competition law is the leading law which regulates comparative advertising. In practice, most extraterritorial countries in regulating comparative advertising are putting the anti-unfair competition law in a dominant position and advertisement law in a subordinate position. In theoretic analysis, the anti-unfair competition law in ative advertising has obvious advantages. The Anti-unfair Competition Law in China has regulating comparnot set up special terms which regulate comparative advertising, and some indirect terms cannot meet the requirements of regulation. Thus, China should add special terms when The Anti-unfair Competition Law is amended, in order to highlight its dominant role in regulating comparative advertising.