论商业道德原则在《反不正当竞争法》中的适用

The Application of Principles of Business Ethics in the Anti-Unfair Competition Law

商业道德原则以实现当事人之间的利益关系、当事人与公共社会之间的利益关系的平衡为目的,与新时代《反不正当竞争法》立法目的中所确立的利益保护结构高度契合,具有成为市场竞争基本原则的法理基础。在法律内涵上,商业道德原则既包括对于“合法自利”的保护,也包括对于“不当损人”的规范;既包含了市场竞争中的人身关系,也涵盖了市场竞争中的财产关系;既包括如“不得搭便车、食人而肥、误导、欺诈、诋毁等”明确的规范内涵而确立于类型化的不正当竞争行为之中,又因“其内涵随着社会不断发展变化而变化”已融入于一般不正当竞争行为的评判之内。同时,在司法适用上,商业道德原则作为一般条款的组成部分,也发挥着利益平衡与法律解释的重要功能。

The principle of business ethics is aimed at realizing the balance of interests between the parties and the public society. It is highly consistent with the interest protection structure established in the legislative purpose of the Anti-Unfair Competition Law in the new era. It has a legal basis that has become the basic principle of market competition. In terms of legal connotation, the principle of business ethics includes both the protection of "legitimate self-interest" and the regulation of "improper harm to others";it includes both personal relationships in market competition and property relationships in market competition;It does not only include clear normative connotations such as "no free-riding, cannibalism, misleading, fraud, slander, etc.", but also has been integrated into the judgment of general unfair competition behavior because its connotations change with the continuous development and changes of society. At the same time, in judicial application, the principle of business ethics, as a component of the general clauses, also plays an important role in balancing interests and interpreting laws.