互联网时代消费者在中国竞争法中的角色重塑与功能再造——兼论《反不正当竞争法》的修改

Role Remolding and Function Reconstruction of Consumers in China's Competition Law in Internet Era: Also on the Amendment of the Anti-Unfair Competition Law

互联网消费者主导经济发展的时代已经到来。互联网的经济特性一方面强化了消费者作为裁判官的角色,而另一方面也必须直面消费者位于互联网竞争生态链最末端的事实。中国反不正当竞争法对消费者的保护不应局限于一种"反射式"的间接保护,而应当是直接保护甚至是侧重保护。互联网时代消费者的特殊地位也决定其特殊功能。论证竞争行为的正当性应以保障经营者合法利益为基础,重点关注消费者的整体、长期利益是否受损对行为做出定性。该法中消费者权益的内涵表现为不受误导和欺诈的知情权以及不受技术强迫和间接干扰的选择权。完善反不正当竞争法中的消费者权益保护不应止于修改不正当竞争的定义,还应明定消费者集体诉权及其具体适用条件。

The age is coming, in which Internet consumers dominate economic development. On the one hand, the economic characteristics of the Internet has strengthened the role of consumers as a judge, on the other hand, we must also face the fact that consumers are located at the end of the Internet competitive ecological chain. The protection of consumer interests by China＇s anti-unfair competition law should be not limited to an indirect reflection-type, but a direct and even focused protection. Consumers in the Internet era have a special status which can also determine their special functions. Demonstrating the legitimacy of competitive behaviors should be based on the protection of the interests of operators, and the nature of the behavior should be determined by focusing on whether the overall, long-term interests of consumers are damaged. The connotations of consumers＇ interests in the law include the right to know so as not to be misled or cheated and the right to choose without technical coercion or indirect interference. To improve the protection of consumer rights and interests in the anti-unfair competition law, we should not only modify the definition of unfair competitive behaviors but also clearly specify the consumers＇ right of collective action and the concrete applicable conditions.