法律比较表明,德国与中国的反不正当竞争法在许多方面互为接近.立法目标方面,都保护竞争者、消费者与社会公众利益.不同于中国法,德国法为消费者组织规定了诉权,这也是中国法的可能展望之一.立法结构方面,都是一般条款结合具体不正当竞争行为规定.消费者保护方面,两国法的核心部分即误导之禁止非常相似.但中国法没有关于信息义务与攻击性的商业行为之特别规定.两国法都禁止销售有混淆危险的模仿产品.但德国法更强调这种混淆危险必须是"可避免的".尚不完全明确的是,中国反不正当竞争法是否与德国法一样禁止通过模仿榨取或损害商誉.对于网络妨碍行为,德国法只是通过一般条款式的"不正当阻碍"规制这类行为.中国法设置了专门规定,创造了更大的法的安定性,但其面临因技术的发展而过时的危险.在商业秘密保护方面,两国法因为《TRIPS协议》第39条的规定而相互接近.德国法即将转化的欧盟商业秘密保护指令对"商业秘密"作出了与中国法第9条相同的立法定义.侵害行为的构成要件规定也相似.为转化欧盟指令,德国商业秘密保护条款有可能从反不正当竞争法中分离出来,这也是中国讨论的问题.%The Chinese and German acts against unfair competition are closely related, as a comparison between both systems shows. In terms of their legislative objectives, they both protect the interests of competitors, consumers and the general public. Unlike Chinese law, German law provides a right of action for consumer organisations, the introduction of which would also be an option for Chinese law. As far as the legislative structure is concerned, both acts combine a general clause with provisions concerning specific unfair practices. In the area of consumer protection, the prohibition of misleading practices in both jurisdictions is very similar. However, there are no special provisions on information obligations and on aggressive commercial practices in Chinese law. Both acts prohibit the sale of imitated products when there is a likelihood of confusion, but German law emphasizes more strongly that unfairness depends on whether the confusion is "avoidable". Whether Chinese unfair competition law, like German law, also prohibits misappropriation by taking unfair advantage of a competitor’s reputation (without confusion as to origin) is not clear. In German law, acts interfering with a competitor’s interests through activities on the internet are dealt with under the general prohibition of "unfair obstruction". In Chinese law, specific provisions on internet obstruction were introduced recently. This creates greater legal certainty, but the provisions risk becoming outdated soon due to the technological development. The protection of trade secrets is similar because both systems implement the obligation of Art. 39 TRIPS. The EU Trade Secrets Directive, which is being implemented in Germany at the moment, defines trade secrets in the same terms as does Art. 9 of the Chinese Act against Unfair Competition. The elements of infringement are also similar. In the course of implementing the EU Directive, however, Germany will pass a separate Act protecting Trade Secrets and will thus separate this area of law from unfair competition law, where it is dealt with in China.
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