完善不正当有奖销售行为法律制度探析（A probe into the legal system for improving the sale of improper prizes）

1、完善不正当有奖销售行为法律制度探析（A probe into the legal system for improving the sale of improper prizes）Perfect the legal system of unfair premium sales analysisThis article source: /Abstract: the essence of market economy is competitive. In the numerous means of competition, a prize winning sales mode has been w

2、idely used, improper behavior is more and more sales award. Based on the analysis of the elements that constitute the starting, expounds the harmfulness of this behavior of operators, consumers and the development of Chinas market economy. At present, the Anti Unfair Competition Law provisions of ar

3、ticle thirteenth, this paper analyzes some defects in the legislation, and puts forward some legislative suggestions.Keywords: lottery sales unfair sale with prizes of Anti Unfair Competition LawPrefaceIn Chinas economic integration into the global economy in the process of Chinas socialist market e

4、conomy has been rapid development. Ensure fair and orderly market competition law is a prerequisite for the sustained and healthy development of the market economy. In the development of market economy, operators in order to occupy the market, improve product visibility, higher profits, will use a v

5、ariety of ways to promote the products, improper prize sale is one of the means. Although Chinas anti unfair competition law has made provisions. However, the new emerge in an endless stream of unfair competition behavior show that problems have become increasingly prominent, unable to maintain the

6、normal order of market competition, the impact of the economic development, which also makes perfect provisions on the sale action Award for anti unfair competition legal system was imminent.A, improper determination of premium salesA premium sales refers to the operators selling goods or provide se

7、rvices incidental to the counterparty to provide a certain amount of money, goods or other economic interests behavior. With all the buyers include reward raffle prize sales and reward part of the purchasers of prize sale. The former refers to reward all buyers prize sales, its essential feature is

8、the possibility of winning participants, predictable and controllable and can obtain what award, which players participate in the prize sales activities before they know their participation in the awards. The latter refers to the operator method to draw, Yaohao with the chance of winning is to deter

9、mine whether the purchaser of premium sales. The essence of behavior is that prize sales activities of participants who can award winning, what has the chance and uncertainty. The improper behavior of sales award is the operator in violation of the principle of honesty and credit and the principle o

10、f fair competition, the prize sale way, the use of material, money or other economic interests to deal with buyers, unfair competition competitive exclusion. The basic characteristics are as follows:1, improper subject award is the sale of operators. The main premium sales are operators and their tr

11、ansactions each other. Provide sales with prize is trading with other operators, including the purchase of goods units and individuals or units to implement the agency representatives, transaction representative, agent.2, improper prize sales can be the goods, money, or other economic interests of t

12、he behavior. Items include not only the goods with identical items including the same kind of goods or articles not related.3, improper prize sales in order to attract customers. Premium sales, regardless of its performance in what form, its fundamental purpose is to attract customers, get more prof

13、its.4, improper prize sale is open. The prize is the sales managers indiscriminately to all buyers, as long as the buyer in accordance with the purchase of certain goods, whether the buyer or why the kind of organization, will be treated equally. And the operators provide gifts, are in some way, suc

14、h as notices, advertising etc. first inform the public to all buyers, buyers of prize sale.5, unfair sale with prizes from property. A premium sales commodity trading behavior from behavior. It is because of premium sales conditions as the deal is affiliated,The competitors can form a competitive ad

15、vantage, it may become a means of promotion of crowding out competitors causing unfair competition; the consumers may buy the gift for goods or services based on the operator, but in sales with prize winning without compensation but not paid.The necessity of two, improper behavior of the legal regul

16、ation of the sales awardUnfair sale with prizes are at a certain stage of development since the market as the premise, then, in allowing a particular state and through certain legal regulation, to protect and develop its advantages and strengths, and inhibit its shortcomings and deficiencies, have b

17、ecome a kind of social governance of course selection. (a) unfair premium sales undermine market competition, dumping, infringement of the legitimate interests of other operators, and is not conducive to the development of the operators dumping, according to the provisions of the Anti Unfair Competi

18、tion Law Eleventh article can be summarized as follows: the operators to exclude competitors for the purpose of selling goods below cost price behavior. The principle of fair competition is the basic principle of market competition, it requires the competitors in the premise of equality, equality of

19、 opportunity, the competition even bargain. But in fact it is equal to the premium sales managers use improper means away from potential buyers of competitors. Therefore, no matter what kind of unfair sale with prizes, the damage to the interests of competitors is a fact beyond all dispute.(two) imp

20、roper premium sales reduced the market transparency, against the interests of consumers. Improper premium sales were able to do and can avoid the law deep reason lies in the asymmetry of prize sale information. Because the operators attached special interest in sales, in the case of asymmetric infor

21、mation, so that consumers do not know the real situation to buy the product, and make the non voluntary rational consumer behavior. But in the improper behavior of sales award, the operator is using the information asymmetry of the prize, abuse their transactions in the market dominant position, usi

22、ng a variety of methods, trying to pass the covert information, by their own responsibility, contrary to the principle of good faith, regardless of national law, damage the interests of consumers.(three) improper conduct sales award will eventually affect the steady operation of efficient allocation

23、 of resources and economic society. Lottery sales way to stimulate consumer desire for consumption is very effective, but the negative effect of this way is very obvious. Improper prize sales activities to convey misleading market information, may lead to the failure of the national macro-control po

24、licies. First of all, the country concerned, lottery sales by operation to increase the operating costs of the way, the incentive costs and other expenses are in circulation expenses, make enterprise income tax reduction, affect national financial income. Secondly, the market price is the barometer

25、. Under the system of market economy, supply and demand of goods is mainly regulated by the price mechanism, countries are mainly based on the market price to carry out macro-control on the national economy. The prize to bring the future sales of weak sales, resulting in larger countries waste of re

26、sources in the allocation of resources. The third, at the same time, the improper award to promote sales, consumers may buy something you dont need or need the goods, so that the market cannot reflect the relationship between supply and demand, the market demand is not balanced. In China, the releva

27、nt provisions of the three defects of Anti Unfair Competition Law.Chinas Anti Unfair Competition Law stipulates clearly that the thirteenth operators shall not engage in any of the following Awards: sales with prizes or deliberately lied internal staff to win prizes by way of deception sales; use of

28、 prizes zhicijiagao marketing means selling goods; the sale of lottery style prize, the highest award of the amount of more than 5000 yuan. Because of Chinas Anti Unfair Competition Law enacted in early 1993, when the market economy is still in the initial stage, people including legislators by age

29、and knowledge for understanding the limits of prize sale,Only in the thirteenth to prohibit the sales activities with prizes of principle, has some shortcomings, need to amend.1, legal lag, content is not the end. Chinas Anti Unfair Competition Law and Regulations are implemented in 1993. More than

30、10 years later, the lag of law has been very obvious, now already cannot satisfy the needs of the market economy. Anti Unfair Competition Law in the thirteenth list of the provisions of the three act prohibited sales award, the national Industrial and Commercial Bureau promulgated the certain provis

31、ions on the prohibition of unfair competition in sales with prize in 1993, although the provisions prohibiting deceptive behavior refinement of the sales award, but also no including all unfair premium sales. And that the specific content of the regulations, many scholars have a lot of opinions, una

32、ble to agree. For example, a prize in the lottery sales in addition to exactly this problem of L of no great importance on the draw ceremony, the nature is also no uniform definition. All this is a reflection of our country in a vague and lack of understanding of the legislation and sales award.2, t

33、he local legislation of the prize is not unified, explain the confusion. In the Anti Unfair Competition Law and Regulations promulgated, many provinces have introduced the relevant local laws and regulations. Start from the first local regulations on the anti unfair competition of the Hainan Special

34、 Economic Zone Anti Unfair Competition Regulations, local regulations NPC Standing Committee of all provinces and autonomous regions and municipalities directly under the central government and for the Anti Unfair Competition Law as many as twenty-seven, including almost all the provisions of the pr

35、ize. These regulations require companies to have content can be described as sales are marked for all kinds of, is not unified, such as the highest award amount, total amount, quantity and quality (Yunnan, Hebei, Chongqing, Zhejiang, Sichuan, Henan, Fujian), grade, Brand Awards (Hubei) models (Hubei

36、, Shandong), and so on. The original is to strengthen local regulations, not only can not really solve the problem, but explain the more chaos, the operator simply at a loss.3, the law is lack of maneuverability. First of all, the relevant parties such as buyers simply do not understand the actual s

37、ales sales with prize is the black box operation, the unfair competition behavior is difficult for the actual formation and cause damage to the interests of accountability. Secondly, with the development of society and economy, prize sales activities in the form of more innovative, especially with t

38、he development of communication and network technology, the electronic goods or services are more and more the way sales award. For the emergence of new forms of unfair sale with prizes, if still the original provisions of applicable law or interpretation, law enforcement can not operate any of its

39、development, it will seriously damage the normal order of market economy.Four, improve the improper legislative proposals of the prizeTo revise and improve the Anti Unfair Competition Law the relevant provisions of the unfair sale with prizes the author put forward the following suggestions:L, by th

40、e third party intervention prize sales activities, to solve the problem of information asymmetry. I suggest to establish prizes reporting system, the notary system sales award prize sales and sales agent system. It is to carry out sales activities with prizes reporting system for sales, report to th

41、e administrative department for Industry and commerce must be approved by the operator, the rear can. The main contents include the declaration of goods, sales award prizes content (bonus or commodity), and the total bonus prize grade, the winners of the prize generation method, time and scope. In s

42、hort, only rely on third party intervention can solve the problem of asymmetric information in the sales award.2, perfect the administrative regulations, laws and regulations to increase operability, give full play to the role of administrative regulations. In the present stage of our country can im

43、prove the relevant regulations on legal norms based on stability and flexibility. For example, can increase the ban to limit the flow of material and real estate as the subject, prohibit the recruitment and free trip abroad as rewards, etc. In this way,You can keep the unity of laws and administrati

44、ve regulations.3, according to the current social conditions and law enforcement experience in administrative punishment on the sales award to distinguish different situation of illegal, for only rules loopholes without the intention of fraud has the prize sales activities should focus on the specif

45、ication, use as far as possible shall be ordered to correct way to correctly guide for operators, and to have the intention of fraud the prize sale by way of prohibition of severe punishment. In order to enhance the operability of the law, the principle of appropriate abundant civil liability, punitive damages, the rule suggests the principle of presumption of fault. At present, the legal basis of civil liability in current law is not unified, in the relevant suggestions in the process of perfecting the system, can be unified regulation of the amount of compensation, in or