论市场混淆行为的法律界分
发布时间：2019-06-29 20:48
【摘要】：竞争是市场经济的本质特征,伴随着我国改革开放的不断深入,市场竞争也愈发激烈。大部分市场主体将时间和精力放在壮大自身实力来提升市场竞争力上,然而,也有不少市场主体却违背公平诚信的竞争原则以及公认的商业道德,通过搭别人的"便车"或"傍名牌"等方式来销售自己的商品或服务(以下统称为"商品"),不仅造成消费者产生误认或混淆,还严重侵害其他市场主体的合法权益,扰乱市场竞争秩序,这种行为属于典型的市场混淆行为。在市场经济中,市场混淆行为具有一定的普遍性,各国及国际组织相关立法均将其列为不正当竞争行为予以明令禁止,我国也将其作为典型的不正当竞争行为予以规制。近年来,我国市场经济高速发展,市场混淆行为亦呈现出复杂化、多元化、国际化趋势,这也在某种程度上折射出我国《反不正当竞争法》对市场混淆行为法律规制的不足。其中,有关市场混淆行为法律界分方面存在的问题表现得尤为突出,这种情况已引起立法者的高度关注。在此背景下,本文分别从市场混淆行为的内涵界定、市场混淆行为的外延区分、市场混淆行为的表现形式以及我国市场混淆行为法律界分的立法检视等四个方面,对市场混淆行为的法律界分问题进行系统研究。本文除绪论与结语外,正文分为四个部分,共计3.7万字。第一部分,市场混淆行为的内涵界定。该部分主要是论述市场混淆行为"界"的问题。首先,通过对国内外关于市场混淆的概念进行对比分析,总结出符合我国国情的定义。其次,从市场混淆行为的概念出发,概括出市场混淆行为的法律特征。第二部分,市场混淆行为的外延区分。该部分主要是论述市场混淆行为"分"的问题,主要包括市场混淆行为与商标侵权行为、市场混淆行为与商标淡化行为、市场混淆行为与虚假宣传行为的契合与分野等。第三部分,市场混淆行为的表现形式。该部分主要是从应然角度界定市场混淆行为的表现形式。依据上述对市场混淆行为的内涵界定与外延区分,通过对国内外相关立法规定的研究,结合我国的现实状况,总结出市场混淆行为的四类主要表现形式。第四部分,我国市场混淆行为法律界分的立法检视。该部分主要是从实然角度对我国市场混淆行为的法律界分问题进行立法检视。在分析我国《反不正当竞争法》及其修订草案(征求意见稿,包括国务院法制办版与全国人大常委会版两个版本,以下分别简称"法制办版草案"与"人大版草案")的相关立法现状及其不足的基础上,提出完善我国市场混淆行为法律界分的立法建议。
[Abstract]:Competition is the essential characteristic of market economy. With the deepening of reform and opening up in our country, the market competition is becoming more and more fierce. Most market subjects focus their time and energy on strengthening their own strength to enhance market competitiveness. However, there are also many market subjects who violate the principle of fair and honest competition and recognized business ethics and sell their own goods or services (hereinafter referred to as "goods") by hitchhiking or "near famous brands", which not only causes consumers to misrecognize or confuse. It also seriously infringes on the legitimate rights and interests of other market subjects and disrupts the order of market competition, which belongs to typical market confusion behavior. In the market economy, the behavior of market confusion is universal, which is explicitly prohibited by the relevant legislation of countries and international organizations as unfair competition behavior, and is also regulated as a typical unfair competition behavior in our country. In recent years, with the rapid development of market economy in our country, the market confusion behavior also shows the trend of complexity, diversification and internationalization, which also reflects the lack of legal regulation of market confusion behavior in the Anti-unfair Competition Law of our country to some extent. Among them, the problems existing in the legal field of market confusion behavior are particularly prominent, which has attracted the attention of lawmakers. In this context, this paper makes a systematic study on the legal division of market confusion behavior from four aspects: the definition of the connotation of market confusion behavior, the extension of market confusion behavior, the manifestation of market confusion behavior and the legislative review of the legal division of market confusion behavior in our country. In addition to the introduction and conclusion, the main body is divided into four parts, a total of 37000 words. The first part is the definition of the connotation of market confusion behavior. This part mainly discusses the problem of market confusion behavior. First of all, through the comparative analysis of the concept of market confusion at home and abroad, summed up the definition in line with the national conditions of our country. Secondly, starting from the concept of market confusion behavior, this paper summarizes the legal characteristics of market confusion behavior. The second part is the extension distinction of market confusion behavior. This part mainly discusses the "division" of market confusion behavior, including market confusion behavior and trademark infringement, market confusion behavior and trademark dilution behavior, the combination and division between market confusion behavior and false propaganda behavior, and so on. The third part, the manifestation of market confusion behavior. This part mainly defines the manifestation of market confusion behavior from the point of view of what should be done. According to the above definition and extension of the market confusion behavior, through the study of the relevant legislative provisions at home and abroad, combined with the reality of our country, this paper summarizes the four main forms of market confusion behavior. The fourth part is the legislative review of the legal division of market confusion behavior in our country. This part mainly carries on the legislative examination to the legal profession division of the market confusion behavior in our country from the actual angle. On the basis of analyzing the present situation and shortcomings of the relevant legislation of the Anti-unfair Competition Law and its revised draft (soliciting opinions, including the two editions of the legal Office of the State Council and the standing Committee of the National people's Congress, hereinafter referred to as the draft of the legal system and the draft of the National people's Congress, respectively), this paper puts forward some legislative suggestions for perfecting the legal division of market confusion behavior in China.
【学位授予单位】：华东师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294
本文编号：2508103
[Abstract]:Competition is the essential characteristic of market economy. With the deepening of reform and opening up in our country, the market competition is becoming more and more fierce. Most market subjects focus their time and energy on strengthening their own strength to enhance market competitiveness. However, there are also many market subjects who violate the principle of fair and honest competition and recognized business ethics and sell their own goods or services (hereinafter referred to as "goods") by hitchhiking or "near famous brands", which not only causes consumers to misrecognize or confuse. It also seriously infringes on the legitimate rights and interests of other market subjects and disrupts the order of market competition, which belongs to typical market confusion behavior. In the market economy, the behavior of market confusion is universal, which is explicitly prohibited by the relevant legislation of countries and international organizations as unfair competition behavior, and is also regulated as a typical unfair competition behavior in our country. In recent years, with the rapid development of market economy in our country, the market confusion behavior also shows the trend of complexity, diversification and internationalization, which also reflects the lack of legal regulation of market confusion behavior in the Anti-unfair Competition Law of our country to some extent. Among them, the problems existing in the legal field of market confusion behavior are particularly prominent, which has attracted the attention of lawmakers. In this context, this paper makes a systematic study on the legal division of market confusion behavior from four aspects: the definition of the connotation of market confusion behavior, the extension of market confusion behavior, the manifestation of market confusion behavior and the legislative review of the legal division of market confusion behavior in our country. In addition to the introduction and conclusion, the main body is divided into four parts, a total of 37000 words. The first part is the definition of the connotation of market confusion behavior. This part mainly discusses the problem of market confusion behavior. First of all, through the comparative analysis of the concept of market confusion at home and abroad, summed up the definition in line with the national conditions of our country. Secondly, starting from the concept of market confusion behavior, this paper summarizes the legal characteristics of market confusion behavior. The second part is the extension distinction of market confusion behavior. This part mainly discusses the "division" of market confusion behavior, including market confusion behavior and trademark infringement, market confusion behavior and trademark dilution behavior, the combination and division between market confusion behavior and false propaganda behavior, and so on. The third part, the manifestation of market confusion behavior. This part mainly defines the manifestation of market confusion behavior from the point of view of what should be done. According to the above definition and extension of the market confusion behavior, through the study of the relevant legislative provisions at home and abroad, combined with the reality of our country, this paper summarizes the four main forms of market confusion behavior. The fourth part is the legislative review of the legal division of market confusion behavior in our country. This part mainly carries on the legislative examination to the legal profession division of the market confusion behavior in our country from the actual angle. On the basis of analyzing the present situation and shortcomings of the relevant legislation of the Anti-unfair Competition Law and its revised draft (soliciting opinions, including the two editions of the legal Office of the State Council and the standing Committee of the National people's Congress, hereinafter referred to as the draft of the legal system and the draft of the National people's Congress, respectively), this paper puts forward some legislative suggestions for perfecting the legal division of market confusion behavior in China.
【学位授予单位】：华东师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294
【参考文献】
相关硕士学位论文 前2条
1 李俊生;比较广告的多维法律规制研究[D];华东师范大学;2016年
2 金长城;商业混淆行为法律问题研究[D];山西大学;2011年
，本文编号：2508103
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