The model of"empowering legislative protection"adjusted by the anti-unfair competition law on com-mercial data exhibites a"structural"mislinement in methodology.At the methodological level,the institutional logic of the anti-unfair competition law,the character of commercial data and its operation mechanism determine that the adjust-ment of the anti-unfair competition law on commercial data should adhere to a"restrained"methodology.However,the model of"empowering legislative protection"is obviously contrary to the requirements of the prior and basic limitations inherent in the"restrained"methodology.At the technical level,the"Empowerment Legislation Protection"paradigm,relying on the"Labour Natural Right Theory","Utilitarian Theory",and"Misappropriation Doctrine",is also difficult to achieve logical consistency.The"restrained"methodology requires that the adjustment of the anti-unfair competition law on commercial data should return to the mode of application of the general provisions of the legal interpretation,and shape the following general analytical framework:selecting and adhering to the standard of measurement of interests on the macro level,and constructing the binary tool spectrum of the"method of order of interests+principle of proportion-ality"on the micro level.
关键词
商业数据/反不正当竞争法/谦抑方法论/法解释学范式
Key words
Commercial Data/Anti-unfair Competition Law/the Restrained Methodology/Mode of the Legal Inter-pretation
维普
万方数据