网络广告不正当竞争行为的现行法规制
发布时间：2019-05-22 16:57
【摘要】：在电子商务活动中,经常出现经营者利用网络广告进行不正当竞争的情形。对广告和不正当竞争,现行法均有规定,但是对新兴的网络广告和网络广告不正当竞争,现行法并没有直接的规定,使得实践发展与法律的滞后产生了很大的矛盾。这一矛盾的解决有两个途径:一重新立法;二在充分利用现行法的基础上,根据需要,扩大解释,增加现行法的广泛适用性。在此二者之间,本文选择了后者,即主张对于网络广告不正当竞争,应立足于广告法和不正当竞争法的原则和条文,利用功能等价和扩大解释的方法,将网络法律与传统商法相嫁接,既保持传统商法的价值,又使其在网络环境具有适用性。 在本文的主体—第二、三部分,分别阐述了广告法和反不正当竞争法对网络广告不正当竞争行为的认定和规制。具体写作时发现,如果一定要适用这两部法来规制,可能会找不到具体的法律条文与具体的不正当竞争行为类型相对应,就需要借助法律原则或者对条文的内涵作扩大化的解释。关于解释方法,本文借鉴了国外在此领域的立法原则及司法实践,特别是联合国贸发会在适用其所制定的《电子商务示范法》时所遵从的原则:一是功能等价法,就是将数据电讯的效用,与传统纸面形式的功能进行类比的方法,目的在于将数据电讯的功能和目的与纸面形式相嫁接,既适应了网络活动灵活多变的特性,又满足了商法价值的平衡。二是目的解释原则,就是根据立法的目的,对具体规定作扩大化的解释,以适应实际情况的多变。即保证网络商务活动的顺利进行,又使现有的《示范法》具有广泛的适用性,且不失商法的价值。 但是在调整方法上,本文没有采用那种对某一行为同时适用不同法律进行规制的方式,目的就是为了在对法律的条文作扩大化解释的时候,能保持各部法律的精神和立法意图。毕竟,不同的法在立法目的、法律原则、调整对象、法律责任、适用范围等重要方面均有不同之处,所以对各自法条扩大化的解释也应体现这些不同。因此,本文按照法律的不同将文章主体分为广告法规制、反不正当
[Abstract]:In e-commerce activities, operators often use online advertising for unfair competition. For advertising and unfair competition, the current law has provisions, but for the new network advertising and unfair competition, the current law does not have direct provisions, which makes the development of practice and the lag of the law produce a great contradiction. There are two ways to solve this contradiction: one is to make full use of the existing law, and the other is to expand the interpretation and increase the wide applicability of the existing law on the basis of making full use of the existing law. Between the two, this paper chooses the latter, that is, to advocate that for unfair competition in online advertising, it should be based on the principles and provisions of advertising law and unfair competition law, and make use of the method of functional equivalence and expanded interpretation. The grafting of network law and traditional commercial law not only maintains the value of traditional commercial law, but also makes it applicable in the network environment. In the main body of this paper-the second part, the third part, respectively elaborated the advertising law and the anti-unfair competition law to the network advertisement unfair competition behavior cognizance and the regulation. When writing specifically, it is found that if these two laws must be applied to regulate, the specific legal provisions may not be found to correspond to the specific types of unfair competition. With the help of legal principles or an expanded interpretation of the connotation of the provisions. With regard to the method of interpretation, this paper draws lessons from the legislative principles and judicial practice of foreign countries in this field, in particular the principles followed by the United Nations Conference on Trade and Development in the application of the Model Law on Electronic Commerce formulated by the United Nations Conference on Trade and Development: first, functional equivalence law, That is, the utility of data telecommunications is compared with the function of traditional paper form, the purpose of which is to grafting the function and purpose of data telecommunications with the paper form, which not only adapts to the flexible and changeable characteristics of network activities. It also satisfies the balance of the value of commercial law. Second, the principle of purpose interpretation is to expand the interpretation of specific provisions according to the purpose of legislation in order to adapt to the variability of the actual situation. That is, to ensure the smooth progress of online business activities, but also to make the existing Model Law have a wide range of applicability, and do not lose the value of commercial law. However, in the adjustment method, this paper does not adopt the way to regulate a certain behavior and apply different laws at the same time, in order to maintain the spirit and legislative intention of each law when the provisions of the law are extended and interpreted. After all, different laws have differences in legislative purpose, legal principles, object of adjustment, legal liability, scope of application and other important aspects, so the interpretation of the expansion of their respective legal articles should also reflect these differences. Therefore, according to the different laws, this paper divides the subject of the article into advertising laws and regulations, which is unfair.
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D912.29
本文编号：2483089
[Abstract]:In e-commerce activities, operators often use online advertising for unfair competition. For advertising and unfair competition, the current law has provisions, but for the new network advertising and unfair competition, the current law does not have direct provisions, which makes the development of practice and the lag of the law produce a great contradiction. There are two ways to solve this contradiction: one is to make full use of the existing law, and the other is to expand the interpretation and increase the wide applicability of the existing law on the basis of making full use of the existing law. Between the two, this paper chooses the latter, that is, to advocate that for unfair competition in online advertising, it should be based on the principles and provisions of advertising law and unfair competition law, and make use of the method of functional equivalence and expanded interpretation. The grafting of network law and traditional commercial law not only maintains the value of traditional commercial law, but also makes it applicable in the network environment. In the main body of this paper-the second part, the third part, respectively elaborated the advertising law and the anti-unfair competition law to the network advertisement unfair competition behavior cognizance and the regulation. When writing specifically, it is found that if these two laws must be applied to regulate, the specific legal provisions may not be found to correspond to the specific types of unfair competition. With the help of legal principles or an expanded interpretation of the connotation of the provisions. With regard to the method of interpretation, this paper draws lessons from the legislative principles and judicial practice of foreign countries in this field, in particular the principles followed by the United Nations Conference on Trade and Development in the application of the Model Law on Electronic Commerce formulated by the United Nations Conference on Trade and Development: first, functional equivalence law, That is, the utility of data telecommunications is compared with the function of traditional paper form, the purpose of which is to grafting the function and purpose of data telecommunications with the paper form, which not only adapts to the flexible and changeable characteristics of network activities. It also satisfies the balance of the value of commercial law. Second, the principle of purpose interpretation is to expand the interpretation of specific provisions according to the purpose of legislation in order to adapt to the variability of the actual situation. That is, to ensure the smooth progress of online business activities, but also to make the existing Model Law have a wide range of applicability, and do not lose the value of commercial law. However, in the adjustment method, this paper does not adopt the way to regulate a certain behavior and apply different laws at the same time, in order to maintain the spirit and legislative intention of each law when the provisions of the law are extended and interpreted. After all, different laws have differences in legislative purpose, legal principles, object of adjustment, legal liability, scope of application and other important aspects, so the interpretation of the expansion of their respective legal articles should also reflect these differences. Therefore, according to the different laws, this paper divides the subject of the article into advertising laws and regulations, which is unfair.
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D912.29
【引证文献】
相关硕士学位论文 前7条
1 马伟华;网络广告的法律监管研究[D];湖南师范大学;2011年
2 赵歌;网络广告不正当竞争行为的法律规制[D];郑州大学;2011年
3 裴晓敏;网络广告法律规制问题研究[D];河南师范大学;2011年
4 潘莹;市场规制法视角下的网络广告法律问题研究[D];黑龙江大学;2011年
5 朱凯玲;网络广告监管法律问题研究[D];湖南大学;2011年
6 白洋;网络不正当竞争行为的法律规制研究[D];中南民族大学;2012年
7 冯冰;网络广告侵权法律问题研究[D];湖南师范大学;2012年
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