反不正当竞争法一般条款与类型化条款的适用关系——从市场混淆行为切入

The Applicable Relationship between the General Provisions and the Typed Provisions of the Anti-Unfair Competition Law—From the Perspective of Market Confusion Behavior

一般条款与反不正当竞争法类型化条款并行适用屡见不鲜,业已成为“向一般条款逃逸”的重要表现之一。在认定市场混淆行为的司法实践中,对一般条款与类型化条款能否并行适用、如何衔接适用的观点大相径庭。由于未厘清二者的适用关系,不少法院甚至在已适用类型化条款的情况下,仍不加说明地在裁判依据中附上一般条款。文章认为一般条款与类型化条款缺乏并行适用的规范基础,法律适用中应遵循特别规定优先于一般规定规则,否则将破坏规范体系的稳定性。在一般条款与类型化条款衔接适用方面,以法益作为判断核心有助于将假性“新型不正当竞争”纳入已有的类型化条款的规制范畴,明晰反不正当竞争法第二章各条款的管辖范围。

It is common for the general provisions of the anti-unfair competition law to be applied in parallel with the typed provisions, which has become one of the important manifestations of “escaping to the general provisions”. In the judicial practice of identifying market confusion behavior, there are widely divergent views on whether the general provisions and the typed provisions can be applied in parallel and how to connect with each other. Due to the failure to clarify the applicable relationship between the above provisions, many courts still attach general provisions to the basis of the judgment without explanation, even in the case where the typed provisions have been applied. The article holds that there is no normative basis for the parallel application of general provisions and typed provisions, and the application of law should follow the priority of special provisions over general rules, otherwise the stability of the normative system will be undermined. Taking legal interests as the key to connect the general provisions with the typed provisions is helpful to include the false “new unfair competition” into the scope of the existing typed provisions, and clarify the jurisdiction of the provisions in Chapter 2 of the Anti-Unfair Competition Law.