《反不正当竞争法》自1993年实施以来,历经近23年,在指导和规范市场经济运行,保护正当的市场竞争行为和合法权益方面,发挥了重大作用。但在我国的社会主义市场经济体制建立以来,尤其是近几年,随着市场主体的多元化,市场竞争日趋激烈,经营者为了使自己能够在市场中生存、发展,获取最大的利润,不可避免地利用限制竞争手段参与市场活动,争夺市场控制权,特别在互联网发展飞速的现今,出现了很多新型的与互联网结合下的不正当竞争行为,产生了一系列的案件(如优酷诉金山不正当竞争一案、腾讯诉360不正当竞争一案等)。在这些案件中,无法套用现行认定框架,法院灵活地应用了原则性规定彰显了反不正当竞争法的生命力,却难免亦有生搬硬套之嫌。本次修订草案,在综合当前经济社会发展改革状况和未来可预测发展脉络的前提下,做了重大完善,特别是对于互联网新型不正当竞争一块做了创设性的规定。 Since its implementation in 1993, Anti-Unfair Competition Law has played a significant role in guiding and regulating the operation of the market economy and protecting due market competition and lawful rights and interests after nearly 23 years. However, since the establishment of the socialist market economic system in our country, especially in recent years, with the diversification of market players and increasingly fierce market competition, operators must, in order to enable themselves to survive and develop in the market and gain maximum profits, Avoid the use of restrictive means of competition to participate in market activities and compete for market control, especially in the rapid development of the Internet nowadays, there have been many new forms of unfair competition with the Internet, resulting in a series of cases (such as Youku v. Jinshan not Proper competition case, Tencent v. 360 unfair competition, etc.). In these cases, the existing framework for determination can not be applied and the court flexibly applied the principle provisions to highlight the vitality of the anti-unfair competition law, but inevitably it is also suspected of being illegitimate. The revised draft makes a major improvement on the premise of integrating the current economic and social reform and the predictable development vein in the future, especially with regard to the creation of a new type of unfair competition on the Internet.