从两个关系看《反不正当竞争法》的修订

Revision of Law Against Unfair Competition Viewed from Its Relationship with Intellectual Property Law and Consumer Protection Law

我国《反不正当竞争法》目前正处于修订之中。该法与知识产权法和消费者保护法之间存在着什么样的关系,以及如何处理这两对关系,直接影响到有关条款的修订工作。把反不正当竞争法完全作为知识产权法子部门的观点不妥,应该回归"反不正当竞争法为知识产权法补漏"的经典认识,改写该法的商业混淆行为条款。消费者保护法源于现代消费者运动。早期的反不正当竞争法并不保护消费者利益,但随着历史演进逐渐把消费者作为直接保护对象。我国《反不正当竞争法》的修订亦应体现这一潮流。

China's Law Against Unfair Competition is currently under revision. How it is related to the intellectual property law and the consumer protection law and how we should deal with such relationships directly affect the amendments to the relevant provisions of the law. On the one hand, it is inappropriate to regard the law against unfair competition just as a section of the intellectual property law. We should return to the classic understanding that the law against unfair competition provides supplementary protection for the intellectual property law, and thus rewrite its clause concerning the commercial conducts which mislead the market. On the other hand, the consumer protection law came from the modern consumer movement. The early unfair competition law did not protect the interests of consumers. But with the gradual evolution in history, the consumer has become a direct object for protection targeted by the consumer protection law. Therefore, this trend should also be reflected in the revision of the Law Against Unfair Competition.