未阐明的规则与权利的证成-武汉大学经济法研究所.PDF

Abstract:There exists a “tree structure” in legal principles. The Chinese courts face a dilemma when they apply legal principles in unfair competition cases. On one hand, legal principles are overused in the sense that they are being used too casually. On the other hand, the courts are short of useful legal principles in the sense that legal principles are not able to offer effective guidance. Legal principles must be justifi ed. They can either be specifi ed from basic principles, or be generalized and abstracted from individual cases. On the process of justifying legal principles, the diversity of legal values should be guaranteed. Adjudicating cases by legal principles is an art of balance. It needs some measures to guarantee its effectiveness, including the balance of interests, analogy, the grouping of similar cases and the streamlining of the argument procedures, etc. Competitive order needs more principles and fewer rules. Judicial activities should not intervene the market excessively. Key Words: legal principles; the justifi cation of principles; the balance of principles; unfair competition; judicial application a d e b c a b c d e