反不正当竞争法视野下商业道德认定的困局及破解

Problems of and Solutions to Business Ethics in the View of Anti-Unfair Competition Law

反不正当竞争法中的商业道德是判定行为正当性的重要标准,科学认定商业道德对规制新型不正当竞争行为大有裨益。司法实践中分别以诚实信用原则、行业自律惯例和创设具体细则三条路径来认定商业道德,然而这三条路径均受到不同程度的批判。对此,从立法史、文义解释与域外实践的视角检视之,可从诚实信用原则的角度诠释商业道德。鉴于行业自律惯例是行业共同体惯常做法与公认标准的体现,与商业道德的源起、内在表征一致,故可辅佐认定商业道德,但应严格限定其适用条件。面对新兴行业竞争规则的匮乏,应允许司法能动地提炼商业道德的具化规则,但其须契合竞争法的基本理念、注重多方主体的利益衡量且以必要的案例群与充分论证为基础。

Business ethics in anti-unfair competition law is an important standard to judge behaviors＇ legitimacy. The reasonable identification of business ethics plays an important role in regulating new unfair competition. In judicial practice, business ethics is determined by principle of good faith, industry self- regulation and specific rules, but these ways are under criticism. From the perspective of legislative history, literal interpretation and extraterritorial practice, we find that principle of good faith cart be used to define business ethics. As the industry self-regulation reflects usual practices and accepted standards of community members and is consistent with the origin and internal characterization of business ethics, so it can be applied to identify business ethics, but we should limit its applicable conditions. In face of the lack of competition rules in new industries, we should allow judges to refine rules of business ethics, but they should conform to basic concepts of competition law, pay attention to interests of many parties, and base on necessary case groups and sufficient demonstration.