新修订反不正当竞争法的顶层设计与实施中的疑难问题探讨

A Discussion on the Top-Level Design of the Newly Revised Chinese Anti-Unfair Competition Law and the Relevant Problems in Its Implementation

在反不正当竞争法修订的顶层设计上,应注重决定性、前瞻性、协同性、现实性、创新性和谦抑性的指导作用。新修订反不正当竞争法一般条款增设"遵守法律"的规定,使该法向制止不正当竞争基本法转型,同时面临如何规制反不正当竞争法以外的"违法行为"的新挑战。反不正当竞争法与知识产权法在保护排他权与合法权益上呈并行关系;与反垄断法相互融合,形成促进市场自由公平竞争的广义竞争法。制止混淆行为条款、制止侵犯商业秘密条款和制止网络不正当竞争条款尚有待完善。建议尽快制定反不正当竞争法实施细则或者修改完善最高人民法院相关司法解释,以保障新法顺利实施。

The top-level design in revising the Anti-unfair Competition Law should pay great attention to the guiding function provided by its decisive, forward looking, cooperative, innovative and modesty features. The newly revised general provisions on Anti-unfair Competition Law add “comply with the law”provisions, so that the law seems to be transformed into the Basic Law to deter acts of unfair competition, but also confronted some new challenges of “unlawful acts” out of the regulation of the current Anti-unfair Competition Law .Anti-unfair Competition Law and Intellectual Property Law provide the parallel protection of exclusive rights and other legitimate rights and interests, which combined with the Antitrust Law, so as to form the general competition law to promote the free and fair market competition. Among which, deterrence of confusing terms, prevention the violation of trade secrets provisions and deterrence of unfair competition acts on internet rules still need improvement. It is suggested to enact the implementing regulations of the Anti-unfair Competition Law as soon as possible, or improve the relevant judicial interpretations of the Supreme People＇s Court, so as to ensure the smooth enforcement of the newly revised law.