论反不正当竞争法的竞争法取向

On Competition Law Orientation of Anti-unfair Competition Law

反不正当竞争法的属性定位、目标取向和判定方法,构成其法律特质的三个维度。反不正当竞争法属于竞争法(经济法)与知识产权法(私法)交叉的法律领域,国际条约及国内理论通常将其归入知识产权法,我国法院一直将其纳入知识产权司法范围,司法裁判将反不正当竞争知识产权化的倾向比较普遍和突出,其竞争法属性相应地被忽视。反不正当竞争与知识产权保护的结缘是历史背景、实用主义等诸多因素综合作用的结果,但反不正当竞争法始终以竞争法方式实现知识产权保护功能。无论是历史还是现实,反不正当竞争法都属于竞争法的范畴,需要回归竞争法的理念和方法,追求竞争法的目标取向,采用符合竞争法和市场竞争属性的行为判断标准。

The attribute orientation, goal orientation and judgment method of Anti--unfair Competition Law constitute three dimensions of its legal characteristics. Anti-- unfair Competition Law belongs to the overlapping legal domain of Competi- tion law （Economic Law） and Intellectual Property Law （Private Law）. Nevertheless, while international treaties and domestic theories usually incorporate Competition Law into intellectual property law, the Chinese courts always treat disputes on unfair competition as Intellectual Property cases. It is a prevalent and prominent tendency that the issues of Competition law are al- ways treated as Intellectual Property problems in judicial practices. Therefore, the competitive attribute of Anti--unfair Com- petition Law is neglected. The anti--unfair competition and the protection of intellectual property rights are the results of the combination of many factors, such as historical background, pragmatism and so on. However, Anti--unfair Competition Law always performs the function of intellectual property protection in the form of competition law. From the perspectives of history and reality, Anti--unfair Competition Law belongs to the category of Competition Law, so it is necessary to return to right concepts and methods, pursue the goal orientation in perspective of Competition Law, what＇s more important is to adopt stand- ards of behavior according with Competition Law and market competition attribute.