【作者】 沙金；

【导师】 于莹；

【作者基本信息】 吉林大学 ， 民商法学， 2010， 博士

【摘要】 商誉是顾客对企业的一种主观上的认同,外在表现为商主体在市场竞争中的企业形象,体现了顾客对企业商品或服务的青睐或信赖程度。良好的商誉无疑会给企业创造更大的经济效益。随着市场竞争的加剧,有些经营者通过采用一些不正当地手段损害他人商誉,甚至享用他人商誉,从而排挤和削弱竞争对手,达到非法牟利的目的。商誉侵权行为不仅使商主体遭受到难以恢复的财产损失,而且破坏了公平竞争的市场经济秩序。由于人们对商誉价值的认识逐渐加深,所以很多企业都将商誉管理作为企业管理的一个重要方面予以高度重视。世界上许多国家和地区都通过各种途径制定和确立了对商誉权及相关利益的保护规则。在我国,对于商誉权的概念、性质以及商誉权与相关权利之间关系等问题仍然没有明确的认识。司法实践中,相关法律规定的不明确使得司法机关和行政执法机关在对侵害商誉权行为进行认定时感到非常困难。本文通过历史分析、比较分析以及个案研究的方法对商誉权的保护问题进行侵权法上的探讨,以期对我国商誉权保护方面的立法提供一些理论上的支持。更多还原

【Abstract】 Goodwill reflects the degree of recognition and favor of customers upon the commodity or service. Good reputation, once established, will bring to the operators a strong competitive advantage and value of the property. Goodwill is created by the subject operators through tremendous funds and labor in the long-term operation. As market competition intensifies, some operators adopt some unlawful means which infringe upon the right of goodwill of others to achieve illegal benefits. Goodwill rights violations suffer not only from difficulty in restoring the main commercial property losses, but also destroying the proper operation of the market mechanism. Many countries and regions around the world draw up and establish protection rules of goodwill right and related interests through various channels. In China, the concept of the right of goodwill, property rights and goodwill related to the relationship between rights and other issues are still no clear understanding. In judicial practice, due to the defects of legislations, goodwill benefits of subject operators could not be effectively protected. Perfection of related laws in our country, especially the perfection of tort law, makes for the realization of value of subject operators’goodwill and protection of goodwill right of subject operators. By means of historical analysis/ comparative analysis and case study, I probe into the civil law perspective of the protection of goodwill right (mainly tort law) so as to provide some theoretical support to legislation of goodwill right protection.The body part of this thesis is divided into four chapters.ChapterⅠGoodwill and goodwill right viewed by tort lawThe author dwells on goodwill and goodwill right in regard of tort law which lays the foundation for further analysis of tort law upon goodwill right. The first section copes with the generation and boundary of goodwill. The concept of goodwill is accepted by legal area in our country and there are lots of correlational studies. However, there are no related rules in legislation upon goodwill besides a few detailed rules in Treasury Department. Different from common-law countries which define goodwill as an economical benefit or a position advantage, civil law countries quite identify with a theory– comprehensive assessment. This theory holds that goodwill is a comprehensive and positive social assessment that customers gave to operators themselves and the commodity or service they supplied. The biggest carrier of goodwill is the subject operator it attaches so that personality markers and other markers of subject operators always contain some information upon goodwill. The second section discusses goodwill right in regard of tort law. There is extremely disunity among scholars upon the recognization upon the nature of goodwill right. Generally speaking, it can be divided into personal right, property right, knowledge right and knowledge & personal right. By means of comparison, the traditional personal right and property right couldn’t contain all the features of goodwill right, while knowledge right is also distinct with goodwill right so the author approves that goodwill right should be annexed to commercial personal right.ChapterⅡThe necessity of tort law protection of goodwill rightIn this chapter, the author analyze the necessity of tort law protection in the perspective of valuation of goodwill right, infringement open to goodwill right and superiority of tort law protection of goodwill right in regard of goodwill right. The first section discusses the assessment of subject operators. Firstly, goodwill right has enormous economical value. Secondly, goodwill right is the core competitiveness of goodwill right. At last, goodwill right is not obtainable. The generation of favorable goodwill generally includes: resources factor, clients factor, and structure factor. The second section analyzes the infringement of goodwill right. There are all kinds of means of goodwill right infringement, like direct imputation of goodwill right, indirect imputation of goodwill right through trademark infringement, patent infringement, etc. The third section copes with the superiority of tort law protection of goodwill right. Tort law mechanism is the most effective way of goodwill right protection which accounts for: tort law mechanism better expresses autonomy of the clients; tort law mechanism highly protects goodwill right; type of protection of tort law mechanism is more comprehensive; tort law mechanism is without delay. Chapter III China’s current tort law lack enough protection of the right of goodwillLaw is constituted by the norms and regulations, which is formed by all kinds of legal norms with the same nature in a legal department. By their nature, all adjustments related to violations and violations of legal norms are all civil tort law norms, tort law shall regulate the general law of tort. This chapter discusses that our current tort law lacks enough protection of the right of goodwill from the five aspects. Section I discusses that the right of goodwill lacks of independent legal status. Goodwill, which is lack of independent legal status of the right, will result in the confusion between goodwill and other rights. Section II discusses the scope of goodwill tort is narrow. Goodwill tort is not conducive to the right to narrow the scope of tort remedies, legislation does not meet the development trend of the world. Section III discusses the types of violations to Goodwill is single. The behaviors acting against goodwill have many different types, such as publishing comparative advertising, misappropriation of the goodwill of others to conduct business activities, the behavior of dilute the goodwill of others, as well as the substance of the real facts without sufficient detail so that make the public misunderstanding and damaging the goodwill of others, but China’s "Anti-Unfair Competition Law" only stipulates "fabrication, spreading falsehoods," this kind of types of abuses, which is not conducive to the effective protection of the rights of goodwill.Chapter four improving the Protection of Tort LawIn the first section of this chapter, in the comparative analysis of civil law countries, the major common law countries, goodwill legislation in the field of international protection mode, the author puts forward the goodwill of the right to protect legislation Mode. View the current situation of our country; it is not mature to develop "single Goodwill Protection Act", primarily due to: goodwill does not have the final form of goodwill, and the scope of the right to protect has the characteristics of non-constancy. Therefore, the object can not right to determine the specific form of protection. China should establish the legal status of goodwill in "Tort Liability Act," or future "Civil Code" series of violations of the right, supplemented by "Anti-Unfair Competition Law," "administrative," "Criminal Law" and other laws to additional protection. Section II of the China’s "Anti-Unfair Competition Law" Improving the Protection of Goodwill. The first is to expand the scope of violating the rights to Goodwill. In my opinion, China’s current "anti-unfair competition law," second paragraph of Article, "this law of unfair competition, is operating in violation of provisions of this Law, damage the legitimate rights and interests of other operators to disrupt social and economic order behavior " should be changed to" this law of unfair competition, is the main operator or other violation of this Law, damage the lawful rights and interests of other operators, disrupt social and economic order." The 14th section of‘Turn over malfeasance compete law’in force which says:“The operators should not fabricate and spread facts to infringe the goodwill and reputation of competitors.”should be modified as“The operators and others should not fabricate and spread facts to infringe the goodwill and reputation of competitors.”Therefore, the definition of goodwill right infringement defined by‘Turn over malfeasance compete law’is not limited to the mandatory competition between violators and victims which is much more beneficial to the protection of goodwill right. Furthermore, expand types of goodwill right infringement, forbid the manners defined in the 14th section of‘Trade libel’defined in‘Turn over malfeasance compete law’and other infringement and lay down rule. Moreover, perfect goodwill right infringement caused by subjective fault. About goodwill right infringement caused by subjective fault, intentional or mistaken fault should be taken into consideration. Finally, define limit of compensation of goodwill right infringement. The third section deals with the perfection of goodwill right protection in‘Liability in Tort’. The author holds that the separate civil rights position of goodwill right should be established; pleading scope of goodwill right infringement responsibility should be defined, like act of duty, personal commitment of goodwill right and self problems of goodwill right, etc.更多还原