反不正当竞争法中过错的地位及适用

理论界和司法界对反不正当竞争法中过错的地位众说纷纭.反不正当竞争法源于侵权法但又具有特殊性,其立法模式为行为规制法而非责任承担法,其保护对象为法益而非权利,这种特殊性决定了过错在反不正当竞争法中具有更为重要的地位.梳理各种不正当竞争行为中过错地位的差异,可以发现过错的要求与反不正当竞争法所保护法益的成熟程度呈现反比关系...

The Status and Application of Fault in the Anti-unfair Competition Law

Theoretic and judicial circles differ on the status of fault in anti-unfair competition law. Anti-unfair competition law originates from tort law but is relatively independent. Its legislative model is behavior regulation law rather than liability law. Its protection object is legal interest instead of rights. This particularity determines that fault has a more important position in the anti-unfair competition law. Through analyzing the specific fault requirement of international treaties and anti-unfair competition law in other countries, we can find the status of fault in the unfair competition behavior components has certain regularity, that is, the requirement of fault is inversely related to the maturity of the legal interest protected by the anti-unfair competition law. The more mature the legal interests, the lower the fault requirements. Faults in various unfair competition behaviors can be divided into three levels for systematic application: faults only serve as reference factors in the determination of counterfeiting, commercial defamation, and false propaganda;and the fault requirement is at least general negligence in the determination of the infringement of trade secrets and Internet unfair competition;the fault requirement is intentional or gross negligence in the determination of violating the general clause of the anti-unfair competition law.