國際服務貿(mào)易保障措施制度之構(gòu)建
發(fā)布時間：2019-05-24 10:11
【摘要】：自上世紀八十年代起,全球經(jīng)濟發(fā)展迅猛,貿(mào)易對象及貿(mào)易模式呈多樣化的發(fā)展態(tài)勢。國際服務貿(mào)易相對貨物貿(mào)易來講,作為一種新興的貿(mào)易產(chǎn)業(yè)更是快速發(fā)展,當代國際服務貿(mào)易更是呈現(xiàn)了多種特征。但是,和貿(mào)易產(chǎn)業(yè)發(fā)展速度不相稱的是,在整個國際貿(mào)易法律體系下,對服務貿(mào)易的規(guī)制并不是很完善,尤其是作為貿(mào)易救濟制度的保障措施制度更是缺位。 保障措施制度作為國際貿(mào)易救濟制度之一,與反傾銷、反補貼有著本質(zhì)的不同,它主要是針對公平的國際貿(mào)易對國內(nèi)產(chǎn)業(yè)造成的損害而啟動的,對于保障一國國民經(jīng)濟的健康發(fā)展有著重要的意義。雖然貨物貿(mào)易領(lǐng)域已經(jīng)建立了以《保障措施協(xié)議》為代表的保障措施制度,但是對于服務貿(mào)易領(lǐng)域中保障措施制度,盡管WTO各成員之間已歷經(jīng)多年的談判,卻難以達成共識,甚至到目前為止連該制度是否有必要存在都還是各方爭議的焦點。作為WTO組織的各成員基于各自的基本立場在是否建立保障措施制度、選用何種模式建構(gòu)服務貿(mào)易保障措施制度等問題上都提出了不同的主張。 通過對各成員方在建構(gòu)服務貿(mào)易保障措施上的分歧的分析,我們發(fā)現(xiàn),保障措施在國際貿(mào)易中對一國的產(chǎn)業(yè)經(jīng)濟有著“安全閥”的作用,正如在貨物貿(mào)易領(lǐng)域一樣,保障措施制度在服務貿(mào)易領(lǐng)域的建構(gòu)將會給服務產(chǎn)業(yè)正處于起步階段或競爭力較低的國家以適當?shù)恼{(diào)整期,不至于使這些國家的產(chǎn)業(yè)面對突如其來的外部競爭陷入癱瘓。同時,在服務貿(mào)易領(lǐng)域建構(gòu)保障措施制度既是對各成員方國內(nèi)利益的尊重,也有利于更大程度的貿(mào)易自由化,也有利于國際經(jīng)濟的健康發(fā)展,建構(gòu)服務貿(mào)易保障措施有著其本身的必要性。 服務貿(mào)易保障措施的建構(gòu)意義重大,WTO成員國以及各國的學者都對其有過研究,但是由于涉及到的成員國國內(nèi)利益等問題較多,以致各方意見難以統(tǒng)一在制度的建構(gòu)上為了能使各方達成共識,有必要在諸多的意見中尋求一種妥協(xié)。 雖然WTO各成員方針對采用何種模式建構(gòu)服務保障措施提出了多種方案,但主要可以歸結(jié)為兩種模式,一種是將保障措施規(guī)則并入到GATS體系,使其成為GATS的附屬條款,但該種模式從實體到程序均未合理考慮到服務貿(mào)易的特殊性,因而對服務貿(mào)易保障措施的借鑒意義不大。畢竟服務貿(mào)易本身有一定的特殊性,而成員提出的方案也都是在考慮自己國內(nèi)利益的基礎(chǔ)上作出的。想要建構(gòu)一個適合于各成員方利益的保障措施規(guī)則,既要考慮服務貿(mào)易的特性,又要兼顧服務貿(mào)易各方在服務產(chǎn)業(yè)發(fā)展上的不平衡。綜合考量這些因素之后,以東盟提出的參考貨物貿(mào)易保障措施制度來建構(gòu)一個平行于《服務貿(mào)易總協(xié)定》(GATS)的保障措施協(xié)定為代表的模式就有了一定的合理性、可行性。畢竟貨物貿(mào)易領(lǐng)域的保障措施發(fā)展的時間較長,發(fā)展程度較為完善,可以作為建構(gòu)服務貿(mào)易保障措施的參考。而且,通過對GATS的詳細分析,不難發(fā)現(xiàn),如果將保障措施規(guī)則附屬于GATS體系有一定的弊端,只有將這些規(guī)則并行于GATS,在具體的操作與執(zhí)行的效果上才會更好。 考慮到貨物貿(mào)易與服務貿(mào)易的相通與差異之處,如何對貨物貿(mào)易保障措施制度加以改進以使其適合服務貿(mào)易領(lǐng)域,其中就需要對國際服務貿(mào)易的整個法制狀況以及貨物貿(mào)易保障措施的基本情況有所了解。在整個國際服務貿(mào)易法制體系中,《服務貿(mào)易總協(xié)定》(GATS)占據(jù)重要的位置,其作為全球范圍內(nèi)第一個專門用來調(diào)整國際服務貿(mào)易的多邊框架協(xié)定,開辟了服務貿(mào)易自由化的新紀元,為多邊服務貿(mào)易談判、國際服務貿(mào)易規(guī)則制定提供了合理的框架及對話機制。各成員可以充分發(fā)表自己在制定服務貿(mào)易領(lǐng)域保障措施上的意見。同時也為建構(gòu)服務貿(mào)易保障措施提供了一定的規(guī)則。同時,貨物貿(mào)易領(lǐng)域的保障措施規(guī)則已趨成熟,對于保障措施的實施目的、實施條件、實施程序、監(jiān)督補救機制都有了較為完善的規(guī)定,為服務貿(mào)易領(lǐng)域建構(gòu)保障措施制度提供了極大的參考價值,WT0各成員需要做的就是如何在參考貨物貿(mào)易領(lǐng)域保障措施的基礎(chǔ)上達成一致,以使服務貿(mào)易的保障措施早日出臺。只有這樣,服務業(yè)發(fā)達的國家追求的最大程度的貿(mào)易自由化、國際市場的最大開放以及服務業(yè)欠發(fā)達國家所擔憂的國內(nèi)產(chǎn)業(yè)受到?jīng)_擊,不利于國民經(jīng)濟的健康有序發(fā)展等問題就會迎刃而解。在此基礎(chǔ)上,對已趨成熟的貨物貿(mào)易保障措施中的部分概念性表述加以分析,如,如何在服務貿(mào)易領(lǐng)域來界定“進口產(chǎn)品”、“同類或相競爭的產(chǎn)業(yè)”、“損害或者損害威脅”等術(shù)語,并對其中的程序性規(guī)定進行探討,如貨物貿(mào)易領(lǐng)域中所要求的通知、磋商、監(jiān)督、實施期限等程序性規(guī)則能否適用于服務貿(mào)易領(lǐng)域,又該如何適用等,同時,由于服務貿(mào)易模式的多樣化,根據(jù)GATS的相關(guān)規(guī)定,服務貿(mào)易的四種模式對保障措施的具體實施有不同的要求,在建構(gòu)時需要根據(jù)不同的模式來分別討論,進而來建構(gòu)起適用于服務貿(mào)易的保障措施制度。 不過,保障措施的實施畢竟只是為了暫時性地給國內(nèi)產(chǎn)業(yè)以調(diào)整期,使其更好地適應國際競爭環(huán)境,國內(nèi)產(chǎn)業(yè)的健康發(fā)展不能過分依賴于這一制度,而只能將其作為臨時性的保障。提高本國產(chǎn)業(yè)的國際競爭力才是國內(nèi)經(jīng)濟發(fā)展的最佳途徑。
[Abstract]:Since the 1980s, the global economy has developed rapidly and the trade object and the trade pattern have diversified. As an emerging trade industry, the trade of international trade in goods is a rapid development. However, the development speed of the trade industry is not commensurate with the development speed of the trade industry. Under the whole international trade law system, the regulation of the service trade is not perfect, especially as the safeguard measure system of the trade relief system is absent. As one of the international trade remedy system, the safeguard measure system is different from the anti-dumping and anti-subsidy system. It is mainly aimed at the harm of the fair international trade to the domestic industry, and it is important to guarantee the healthy development of a country's national economy in that area of trade in goods, the system of safeguard measures in the area of service trade has been set up, but the system of safeguard measures in the area of service trade is difficult to achieve in spite of the years of negotiation among the members of the WTO To know, even to date, whether the system is necessary or not is the focus of the dispute As a member of the WTO, different masters have been put forward on the basis of the basic position of the WTO, the establishment of the safeguard measure system, the model construction of the service trade guarantee measure system, etc. Zhang. Through the analysis of the differences of the members in the construction of the service trade guarantee measures, we have found that the safeguard measures have the "safety valve" to the industrial economy of a country in international trade, just as in the trade of goods Like the domain, the construction of the safeguards system in the area of service trade will bring the service industry in a starting or competitive state with an appropriate adjustment period, so that the industry of these countries will not face the sudden outside competition At the same time, the construction of the safeguards system in the area of service trade is both a respect for the domestic interests of the members and a greater degree of trade liberalization, which is also conducive to the healthy development of the international economy, and the construction of the service trade guarantee measures has its own The necessity and the significance of the construction of the service trade guarantee measure, the WTO member countries and the scholars of all countries have studied them, but because the problems of the domestic interests of the member countries involved are so many, the opinions of the parties are difficult to be unified on the construction of the system so as to enable each party to It is necessary to find a consensus among the parties, and it is necessary to find out in many opinions This paper is a kind of compromise. Although the policy of every member of the WTO has put forward a variety of schemes for the model construction service guarantee measures, it can be summed up in two modes, one is to incorporate the safeguard measure rule into the GATS system, make it a GA The subsidiary clauses of the TS, but the model has not taken into account the particularity of the service trade from the entity to the procedure, so the service trade guarantee measures After all, the service trade itself has some special characteristics, and the proposals put forward by the members are also taking into account their domestic interests On the basis of building a rule of safeguard measures suitable for the interests of all members, it is necessary to take into account the characteristics of the service trade, and to balance the service trade parties in the service industry After a comprehensive consideration of these factors, it is necessary to build a model parallel to the General Agreement on Trade in Goods (GATS) to form a model parallel to the General Agreement on Trade in Goods (GATS) It is reasonable and feasible. After all, the development of the safeguard measures in the trade area of goods is long, the development degree is perfect, and it can be used as the construction service trade It is not difficult to find out the reference of the safeguard measures. In addition, through the detailed analysis of the GATS, it is not difficult to find out that, if the safeguard measures rule is attached to the GATS system, only these rules are parallel to the GATS, and in the specific operation and execution The effect will be better. In view of the communication and difference of the trade between the goods and the service, how to improve the system of goods trade guarantee measures to suit the service trade field, in which the whole legal status of international service trade and the safeguard measures for trade in goods are needed As a whole, the General Agreement on Trade in Services (GATS), which is the first multilateral framework agreement to regulate international trade in services, opened up services as the first multilateral framework agreement to regulate international trade in services throughout the international trade and legal system. The new era of trade liberalization provides a basis for multilateral trade negotiations and the development of rules for international trade in services The framework and the dialogue mechanism of the organization. Members can make full use of their own service trade collar Comments on the security measures of the domain, and also measures for the construction of service trade At the same time, the rules of the safeguard measures in the field of trade in goods have become mature, and the implementation of the safeguard measures, the implementation conditions, the implementation procedures and the supervision and remedy mechanism have been well established, and the construction of the safeguard measures system in the field of service trade For a great reference value, the members of the WT0 need to make a consensus on how to guarantee the service trade based on the reference to the trade area of goods. It is not conducive to the healthy and orderly development of the national economy, except that the largest degree of trade liberalization in the developed countries of the service industry, the largest opening of the international market and the impact of the domestic industry of the service industry in the developed countries are not conducive to the healthy and orderly development of the national economy. On this basis, some conceptual expressions of the mature goods trade guarantee measures are analyzed, such as how to define the terms such as "Imported products", "An industry of the same kind or competition.", "Damage or damage to a threat" and so on in the field of service trade, The procedural rules, such as the notice, consultation, supervision and implementation time required in the area of trade in goods, can be applied to the area of service trade, and how to apply, and, at the same time, due to the diversification of the service trade mode, according to the The relevant regulations of GATS and the four modes of service trade have different requirements for the specific implementation of the safeguard measures. However, the implementation of the safeguard measures is, after all, to provide the domestic industry with an adjustment period to better adapt to the international competition environment, and the healthy development of the domestic industry cannot be excessively dependent on this system, and only can be used as a temporary guarantee, and the international competitiveness of the national industry is improved
【學位授予單位】：西南大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D996.1
本文編號：2484781
[Abstract]:Since the 1980s, the global economy has developed rapidly and the trade object and the trade pattern have diversified. As an emerging trade industry, the trade of international trade in goods is a rapid development. However, the development speed of the trade industry is not commensurate with the development speed of the trade industry. Under the whole international trade law system, the regulation of the service trade is not perfect, especially as the safeguard measure system of the trade relief system is absent. As one of the international trade remedy system, the safeguard measure system is different from the anti-dumping and anti-subsidy system. It is mainly aimed at the harm of the fair international trade to the domestic industry, and it is important to guarantee the healthy development of a country's national economy in that area of trade in goods, the system of safeguard measures in the area of service trade has been set up, but the system of safeguard measures in the area of service trade is difficult to achieve in spite of the years of negotiation among the members of the WTO To know, even to date, whether the system is necessary or not is the focus of the dispute As a member of the WTO, different masters have been put forward on the basis of the basic position of the WTO, the establishment of the safeguard measure system, the model construction of the service trade guarantee measure system, etc. Zhang. Through the analysis of the differences of the members in the construction of the service trade guarantee measures, we have found that the safeguard measures have the "safety valve" to the industrial economy of a country in international trade, just as in the trade of goods Like the domain, the construction of the safeguards system in the area of service trade will bring the service industry in a starting or competitive state with an appropriate adjustment period, so that the industry of these countries will not face the sudden outside competition At the same time, the construction of the safeguards system in the area of service trade is both a respect for the domestic interests of the members and a greater degree of trade liberalization, which is also conducive to the healthy development of the international economy, and the construction of the service trade guarantee measures has its own The necessity and the significance of the construction of the service trade guarantee measure, the WTO member countries and the scholars of all countries have studied them, but because the problems of the domestic interests of the member countries involved are so many, the opinions of the parties are difficult to be unified on the construction of the system so as to enable each party to It is necessary to find a consensus among the parties, and it is necessary to find out in many opinions This paper is a kind of compromise. Although the policy of every member of the WTO has put forward a variety of schemes for the model construction service guarantee measures, it can be summed up in two modes, one is to incorporate the safeguard measure rule into the GATS system, make it a GA The subsidiary clauses of the TS, but the model has not taken into account the particularity of the service trade from the entity to the procedure, so the service trade guarantee measures After all, the service trade itself has some special characteristics, and the proposals put forward by the members are also taking into account their domestic interests On the basis of building a rule of safeguard measures suitable for the interests of all members, it is necessary to take into account the characteristics of the service trade, and to balance the service trade parties in the service industry After a comprehensive consideration of these factors, it is necessary to build a model parallel to the General Agreement on Trade in Goods (GATS) to form a model parallel to the General Agreement on Trade in Goods (GATS) It is reasonable and feasible. After all, the development of the safeguard measures in the trade area of goods is long, the development degree is perfect, and it can be used as the construction service trade It is not difficult to find out the reference of the safeguard measures. In addition, through the detailed analysis of the GATS, it is not difficult to find out that, if the safeguard measures rule is attached to the GATS system, only these rules are parallel to the GATS, and in the specific operation and execution The effect will be better. In view of the communication and difference of the trade between the goods and the service, how to improve the system of goods trade guarantee measures to suit the service trade field, in which the whole legal status of international service trade and the safeguard measures for trade in goods are needed As a whole, the General Agreement on Trade in Services (GATS), which is the first multilateral framework agreement to regulate international trade in services, opened up services as the first multilateral framework agreement to regulate international trade in services throughout the international trade and legal system. The new era of trade liberalization provides a basis for multilateral trade negotiations and the development of rules for international trade in services The framework and the dialogue mechanism of the organization. Members can make full use of their own service trade collar Comments on the security measures of the domain, and also measures for the construction of service trade At the same time, the rules of the safeguard measures in the field of trade in goods have become mature, and the implementation of the safeguard measures, the implementation conditions, the implementation procedures and the supervision and remedy mechanism have been well established, and the construction of the safeguard measures system in the field of service trade For a great reference value, the members of the WT0 need to make a consensus on how to guarantee the service trade based on the reference to the trade area of goods. It is not conducive to the healthy and orderly development of the national economy, except that the largest degree of trade liberalization in the developed countries of the service industry, the largest opening of the international market and the impact of the domestic industry of the service industry in the developed countries are not conducive to the healthy and orderly development of the national economy. On this basis, some conceptual expressions of the mature goods trade guarantee measures are analyzed, such as how to define the terms such as "Imported products", "An industry of the same kind or competition.", "Damage or damage to a threat" and so on in the field of service trade, The procedural rules, such as the notice, consultation, supervision and implementation time required in the area of trade in goods, can be applied to the area of service trade, and how to apply, and, at the same time, due to the diversification of the service trade mode, according to the The relevant regulations of GATS and the four modes of service trade have different requirements for the specific implementation of the safeguard measures. However, the implementation of the safeguard measures is, after all, to provide the domestic industry with an adjustment period to better adapt to the international competition environment, and the healthy development of the domestic industry cannot be excessively dependent on this system, and only can be used as a temporary guarantee, and the international competitiveness of the national industry is improved
【學位授予單位】：西南大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D996.1
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