關於競爭行為正當性評判泛道德化之反思

Introspection on the Moral Criteria in Evaluating Competitive Conducts

就主流理論和法院實踐而言，道德解讀在反不正當競爭法尤其是其一般條款方面占有重要地位。但是競爭有其不同於道德評價的內在規律，在運用一般條款時，應當尊重反不正當競爭法的文本，關注行為對競爭秩序的客觀影響，而不應將道德感作為判斷競爭行為正當性的終極標準。Mainstream research and dominating court practice view rules of Competition Law, especially its catch-all provision, as heavily moral-loaded. Yet competition must be understood as a regime following its own path other than that of any moral system. To apply the catch-all-provision properly requires respect to the wording of Competition Law as well as focusing on the objective influence upon the competitive order caused by the competitive behavior in question. The ultimate criteria for the justification of competition conducts, as the article shows, shall not be set by morals.