不正当竞争的判断步骤

The Judging Steps of Unfair Competition

在我国,判断不正当竞争纠纷尚未形成统一的标准。尤其是针对非类型化的不正当竞争行为,尚缺乏对可保护利益的判断标准。本文主张宜采用比例原则来判断是否存在可保护利益。接下来是判断是否具有竞争关系上,在判断竞争关系时宜采用产品或服务可替代理论,也就是说,只有存在产品或服务存在可替代性时,才构成竞争关系。最后,是判断在特定竞争关系下,竞争行为是否造成了被竞争者的损失,只有造成了被竞争者的损失且损失与竞争行为存在因果关系的情况下,才构成不正当竞争利益的损失。按照以上三个步骤,判断不正当竞争纠纷就容易多了,而且标准统一。

In China,there is no unified standard for judging unfair competition disputes.Especially for the untyped unfair competition,there is still a lack of judgment criteria for protecting interests.This paper argues that the principle of proportionality should be used to judge whether there are protectable interests.The next step is to determine whether there is a competitive relationship.The theory of substitutability of products or services should be adopted when judging the competitive relationship.That is to say,only when there is substitutability of products or services,it can form a competitive relationship.Finally,it is to judge whether the competitive behavior has caused the loss of the competitors under the specific competitive relationship.Only when the loss of the competitor is caused and there is a causal relationship between the loss and the competition behavior,can the loss of unfair competition interest be constituted.According to the above three steps,it is much easier to judge unfair competition disputes,and the standards are unified.