摘要： 商业道德是反不正当竞争法安身立命的根基。国际范围内的商业道德经历了由经验标准到功能标准、由体面行为的主观道德到自由效率的客观道德以及由竞争者本位到社会利益本位的转变,其内涵不断更新和重构,但通常仍未抛弃商业道德的外壳。我国《反不正当竞争法》的商业道德经历了由泛化的世俗道德到市场领域化的商业伦理、以公认的行为规范为代表的经验标准到以市场竞争不受扭曲的功能标准以及经营者优位到市场竞争秩序优位的转变,商业道德的内涵和标准不断地被塑造,但其基础地位一如既往。在多种观念和价值交织之下,商业道德内涵和标准的塑造要统筹兼顾经验标准与功能标准,以功能标准优先,除非另有更高位阶的道德诉求;在法益保护多元化之下,以维护市场竞争秩序优先。依照商业道德判断竞争行为的正当性,通常以经营者或者消费者权益受到损害为表面证据,突出竞争自由和市场效率的价值目标,最终以是否扭曲市场竞争为根本标准。

关键词: 反不正当竞争法, 商业道德, 诚实商业惯例, 公平竞争, 自由竞争

Abstract: Business ethics is the cornerstone of the Anti-Unfair Competition Law.On an international scale, business ethics has undergone a transformation from empirical standards to functional standards, from a subjective morality of decent conduct to an objective morality of freedom and efficiency, and from a competitor-oriented to a social interest-oriented perspective.Its substance is constantly being renewed and reconstructed, but the framework of “business ethics” itself is generally retained.In China, the concept of business ethics within the Anti-Unfair Competition Law has evolved from a generalized secular morality to a market-specific business ethic; from an empirical standard represented by recognized norms of conduct to a functional standard aimed at preventing market competition distortion; and from a paradigm prioritizing business operators to one prioritizing the order of market competition.The substance and standards of business ethics are continuously shaped, yet its foundational role remains unchanged.    In the interplay of multiple concepts and values, the shaping of the substance and standards of business ethics must balance both empirical and functional standards, giving priority to functional standards unless there is a higher-order ethical demand.Under the diversification of legal interest protection, priority is given to maintaining the order of market competition.When judging the legitimacy of competitive acts according to business ethics, harm to the rights and interests of operators or consumers is typically taken as prima facie evidence.The process should emphasize the value goals of freedom of competition and market efficiency, ultimately using the distortion of market competition as the fundamental criterion.

Key words: Anti-Unfair Competition Law, Business Ethics, Honest Commercial Practices, Fair Competition, Free Competition