중국 반부정당경쟁법 일반조항의 의미 및 사례

The Meaning and Precedents of the Umbrella Provision of Unfair Competition Act in PRC

In the Chapter Two (titled “Unfair Competition”) of Unfair Competition Act in PRC (hereunder ‘the Act’), there are eleven provisions in that specify the actions that are regarded as unfair competition. At the same time the article 2 in the Chapter One of the Act (General Rules), stipulates the basic principles of fair competition and general meaning of unfair competition, (so-called an umbrella provision). There is an academic controversy with regard to the relationship between the article 2 of the Act (i.e. the general provision) and the eleven specific provisions in the Act. One views that the umbrella provision can be independently applied without applying other specific provisions and therefore any action that violates the umbrella provision can be recognized as an unfair competition, even though it is not specified in the specific provisions in the Act. Some scholars are against such view. However, courts in the PRC have the former view, namely that the general provision can be an independently applied. Such opinion of PRC courts is understandable. As the economy of PRC grows rapidly, new forms of unfair competition actions continue to emerge. Accordingly, PRC courts widely apply the general provision in the Act in order to widen the narrowly defined scope of unfair completion actions in the Chapter Two of the Act. This article aims to help understanding the meaning and court precedents of the general provision of the Act, and comprehend the significance of it. This article first covers the meaning of the general provision of the Act. Second it focuses on the recent court cases in which the general provision was applied with regard to unfair competition actions.