《反不正当竞争法》中的“经营者之困”及其破解
发布时间：2018-07-26 07:32
【摘要】：《反不正当竞争法》是我国维护市场经济秩序,保障公平竞争的重要法律制度。自1993年颁布施行,已二十余载。近年来,我国的市场竞争状况发生了广泛而深刻的变化,《反不正当竞争法》对于市场公平竞争秩序的维护显得愈加捉襟见肘。其中,关于"经营者"概念的规定更是存在一系列的缺陷,尤其是在法律适用的过程中,由于现行规定的模糊性,各地执法、司法部门对"经营者"的理解不一,一些不正当竞争行为严重扰乱市场秩序,却不能受到《反不正当竞争法》的规制。这样,不仅不能有效地保障合法经营者、消费者的权益,而且会阻碍市场经济的发展。《反不正当竞争法》中"经营者"与商人、民事主体等其他法律主体间的关系为何,"经营者"概念是去是留,如何对"经营者"的内涵进行阐释等,这些问题被学界统称为"经营者之困"。本文通过分析经济法主体理论,搜集我国立法、执法以及司法实践中破解经营者之困的现实资源,提出了破解经营者之困的具体思路。文章共分为五个部分:第一章主要是关于经营者之困相关内容的一般性认识。通过梳理我国相关法律规范中的"经营者"概念,分析了我国现行《反不正当竞争法》中"经营者"概念的内涵所指,并从立法、法律适用及法律效用三个层面指出现行概念本身存在的缺陷。在此基础之上,对学界关于"经营者"内涵的主要分歧进行梳理,并对"经营者之困"产生的原因进行探析,以便在破解经营者之困时能够做到有的放矢。第二章以法律主体理论为出发点,力求明确经营者作为经济法主体的角色属性。法律主体的特殊性仅在于其在不同法律规制之下的角色属性不同,经营者作为经济法上的主体,应然地体现出经济法所赋予的"特质"。以比较的视野来看,经济法语境下的经营者与民法上的民事主体,商法语境下的商人在某些方面虽各有通约之处,但不能否认三者之间亦存有隔阂,只有厘清经营者与民事主体、商人之间的关系,才能使对经营者内涵的认识清晰化。第三章力图从我国目前在立法、执法以及司法实践中对于"经营者"概念的具体处理方法中,挖掘出一些破解"经营者之困"的思路。本章对国家工商行政管理总局就相关问题的批复及答复意见,地方立法对经营者概念的拓展以及司法实践中法院对经营者概念的解释进行了梳理,这些具体的做法为我们思考经营者内涵的阐释,《反不正当竞争法》的适用范围等问题提供了参考。第四章从一个宏观的角度探究"经营者之困"的破解,即不正当竞争行为主体要件的取舍。通过分析反不正当竞争法的行为规制法属性,结合域外制度,提出不再对不正当竞争行为的主体概念进行规定是一种理想的立法趋势。但结合我国现实的国情,传统文化的影响、法律适用水平的限制、修法成本效益的考量等都制约着我国对不正当竞争行为主体概念的立法选择,继续在法律中对不正当竞争行为的主体概念进行规定,是当下最为现实的出路。第五章提出了破解经营者之困的具体思路。鉴于当前《反不正当竞争法》修法的幅度不明,本章从"小修"和"大改"两种角度给出了两种具体修法思路。其一,继续使用"经营者",但对其内涵进行重塑;其二,以"竞争者"代替"经营者"作为不正当竞争行为的主体概念。
[Abstract]:"Anti Unfair Competition Law" is an important legal system for our country to maintain the order of the market economy and ensure fair competition. Since its promulgation and implementation in 1993, it has been over twenty years. In recent years, the market competition in our country has undergone extensive and profound changes, and the protection of the fair competition order of the anti unfair competition law is becoming more and more difficult. In the process of the application of the law, there is a series of defects, especially in the process of the application of the law. Due to the fuzziness of the current regulations, the law enforcement in various places, the judicial department has different understanding of the "operator", and some unfair competition behavior seriously disrupts the market order, but it can not be regulated by the "Anti Unfair Competition Law". Not only can it effectively protect legal operators and consumers' rights and interests, but also hinder the development of market economy. What is the relationship between the "operator" in Anti Unfair Competition Law and the merchant, civil subject and other legal subjects; the concept of "operator" is to stay and how to explain the connotation of the "operator", these problems have been studied by the academic community. This article, through the analysis of the main theory of economic law, collects the realistic resources of our country's legislation, law enforcement and judicial practice, and puts forward the concrete ideas to solve the difficulties of the operators. The article is divided into five parts: the first chapter is mainly concerned with the general understanding of the related contents of the operators. The concept of "operator" in the relevant legal norms of China is combed, and the connotation of the concept of "operator" in China's current "Anti Unfair Competition Law" is analyzed, and the defects in the existence of the concept of the emergence of the emergence of the line of line are pointed out from three aspects of legislation, legal application and legal utility. The second chapter, taking the legal subject theory as the starting point, strives to clarify the role attribute of the operator as the main body of the economic law. The particularity of the legal subject lies only in its role attributes under different legal regulations. As the main body of economic law, operators should reflect the "characteristics" given by the economic law. In a comparative perspective, the operators in the context of economic law and civil subjects in civil law, and businessmen in the context of commercial law have common points of agreement in some respects, but they can not recognize the gap between the three and only clarify the operators. The relationship between the civil subject and the merchant can make a clear understanding of the connotation of the operator. The third chapter tries to dig out some ideas to solve the "operator's sleepiness" in the concrete treatment of the concept of "operator" in the current legislation, law enforcement and judicial practice in our country. The comments and comments of the questions, the expansion of the concept of the operator in the local legislation and the interpretation of the concept of the operator in the judicial practice have been combed. These concrete practices provide reference for us to think about the interpretation of the connotation of the operator and the scope of the application of the anti unfair competition law. The fourth chapter probes into a macro perspective. The solution of the "operator's sleepiness" is the choice of the main elements of the unfair competition behavior. Through the analysis of the property of the act regulation law of the anti unfair competition law and the extraterritorial system, it is proposed that the provision of the main concept of the unfair competition behavior is an ideal legislative trend. But the influence of traditional culture is combined with the actual conditions of our country. The limitation of the applicable level of law and the consideration of the cost and benefit of the repair are all restricting our country's legislative choice of the concept of the unfair competition behavior subject, and continuing to stipulate the subject concept of the unfair competition behavior in the law. It is the most realistic way out at the moment. The fifth chapter puts forward the concrete thinking of solving the difficulties of the operators. The scope of the Anti Unfair Competition Law > repair method is unknown. This chapter gives two concrete methods of repair from the two angles of "minor repair" and "great reform". One is to continue to use the "operator", but remould its connotation; secondly, the main concept of unfair competition behavior is replaced by "competitor".
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294
本文编号：2145301
[Abstract]:"Anti Unfair Competition Law" is an important legal system for our country to maintain the order of the market economy and ensure fair competition. Since its promulgation and implementation in 1993, it has been over twenty years. In recent years, the market competition in our country has undergone extensive and profound changes, and the protection of the fair competition order of the anti unfair competition law is becoming more and more difficult. In the process of the application of the law, there is a series of defects, especially in the process of the application of the law. Due to the fuzziness of the current regulations, the law enforcement in various places, the judicial department has different understanding of the "operator", and some unfair competition behavior seriously disrupts the market order, but it can not be regulated by the "Anti Unfair Competition Law". Not only can it effectively protect legal operators and consumers' rights and interests, but also hinder the development of market economy. What is the relationship between the "operator" in Anti Unfair Competition Law and the merchant, civil subject and other legal subjects; the concept of "operator" is to stay and how to explain the connotation of the "operator", these problems have been studied by the academic community. This article, through the analysis of the main theory of economic law, collects the realistic resources of our country's legislation, law enforcement and judicial practice, and puts forward the concrete ideas to solve the difficulties of the operators. The article is divided into five parts: the first chapter is mainly concerned with the general understanding of the related contents of the operators. The concept of "operator" in the relevant legal norms of China is combed, and the connotation of the concept of "operator" in China's current "Anti Unfair Competition Law" is analyzed, and the defects in the existence of the concept of the emergence of the emergence of the line of line are pointed out from three aspects of legislation, legal application and legal utility. The second chapter, taking the legal subject theory as the starting point, strives to clarify the role attribute of the operator as the main body of the economic law. The particularity of the legal subject lies only in its role attributes under different legal regulations. As the main body of economic law, operators should reflect the "characteristics" given by the economic law. In a comparative perspective, the operators in the context of economic law and civil subjects in civil law, and businessmen in the context of commercial law have common points of agreement in some respects, but they can not recognize the gap between the three and only clarify the operators. The relationship between the civil subject and the merchant can make a clear understanding of the connotation of the operator. The third chapter tries to dig out some ideas to solve the "operator's sleepiness" in the concrete treatment of the concept of "operator" in the current legislation, law enforcement and judicial practice in our country. The comments and comments of the questions, the expansion of the concept of the operator in the local legislation and the interpretation of the concept of the operator in the judicial practice have been combed. These concrete practices provide reference for us to think about the interpretation of the connotation of the operator and the scope of the application of the anti unfair competition law. The fourth chapter probes into a macro perspective. The solution of the "operator's sleepiness" is the choice of the main elements of the unfair competition behavior. Through the analysis of the property of the act regulation law of the anti unfair competition law and the extraterritorial system, it is proposed that the provision of the main concept of the unfair competition behavior is an ideal legislative trend. But the influence of traditional culture is combined with the actual conditions of our country. The limitation of the applicable level of law and the consideration of the cost and benefit of the repair are all restricting our country's legislative choice of the concept of the unfair competition behavior subject, and continuing to stipulate the subject concept of the unfair competition behavior in the law. It is the most realistic way out at the moment. The fifth chapter puts forward the concrete thinking of solving the difficulties of the operators. The scope of the Anti Unfair Competition Law > repair method is unknown. This chapter gives two concrete methods of repair from the two angles of "minor repair" and "great reform". One is to continue to use the "operator", but remould its connotation; secondly, the main concept of unfair competition behavior is replaced by "competitor".
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294
【参考文献】
相关期刊论文 前10条
1 焦海涛;;经济法主体制度重构:一个常识主义视角[J];现代法学;2016年03期
2 李明德;;关于反不正当竞争法的几点思考[J];知识产权;2015年10期
3 王建文;;我国商法引入经营者概念的理论构造[J];法学家;2014年03期
4 孔祥俊;;反不正当竞争法的司法创新和发展——为《反不正当竞争法》施行20周年而作(上)[J];知识产权;2013年11期
5 于剑华;;论我国竞争法体制的形成与改善——以《反不正当竞争法》的修订为契机[J];公民与法(法学版);2013年11期
6 李胜利;;论《反不正当竞争法》中的竞争关系和经营者[J];法治研究;2013年08期
7 胡燕;;论反不正当竞争法中经营者概念的完善[J];北京化工大学学报(社会科学版);2012年02期
8 邹津宁;陈艳;;我国竞争法中“经营者”概念探析[J];学术界;2011年06期
9 王先林;;论反不正当竞争法调整范围的扩展——我国《反不正当竞争法》第2条的完善[J];中国社会科学院研究生院学报;2010年06期
10 郑友德;伍春艳;;我国反不正当竞争法修订十问[J];法学;2009年01期
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