論反壟斷法民事救濟(jì)制度
發(fā)布時(shí)間：2019-03-25 11:03
【摘要】：反壟斷法的救濟(jì)問題,在反壟斷法域中向來是比較受重視的一個(gè)領(lǐng)域。其中民事救濟(jì)是整個(gè)救濟(jì)體系中非常重要的一個(gè)組成部分。然而中國《反壟斷法》僅在第50條對(duì)壟斷行為應(yīng)承擔(dān)的民事責(zé)任作了原則性的規(guī)定。這一訴權(quán)宣示如何轉(zhuǎn)化成現(xiàn)實(shí)的民事訴訟,如何服務(wù)于反壟斷法立法目的的實(shí)現(xiàn),需要在哪些方面完善配套制度?這些都是中國反壟斷法民事救濟(jì)制度建設(shè)必須要回答和研究的問題。 筆者期望通過對(duì)反壟斷法民事救濟(jì)制度設(shè)計(jì)過程中的指導(dǎo)思想和具體配套制度的辯證性分析和系統(tǒng)化研究,指明我國反壟斷法民事救濟(jì)制度需要完善的方向,為立法者提供可行性和建設(shè)性意見。 本文從五個(gè)方面對(duì)反壟斷民事救濟(jì)制度展開論述,內(nèi)容提要如下： 第一個(gè)方面是對(duì)反壟斷法民事救濟(jì)的界定,這也是本文研究的背景視野。反壟斷法民事救濟(jì)在本文中特指受害者針對(duì)壟斷行為提起的民事訴訟活動(dòng),分析了反壟斷法民事救濟(jì)與反壟斷法私人執(zhí)行的關(guān)系,指出反壟斷民事救濟(jì)具有的雙重功能,即給受害者提供補(bǔ)償和協(xié)助執(zhí)法,揭示出反壟斷法民事救濟(jì)制度背后深刻的制度價(jià)值。 第二個(gè)方面從必要性和合法性兩個(gè)角度分析了反壟斷法民事救濟(jì)制度的法理基礎(chǔ)。任何法律制度的出臺(tái),都是伴隨著社會(huì)形態(tài)的發(fā)展變化和時(shí)代進(jìn)步的需求應(yīng)運(yùn)而生的,反壟斷法民事救濟(jì)制度同樣如此。域外的反壟斷實(shí)踐一再證實(shí),僅靠公共執(zhí)法,反壟斷法的落實(shí)程度是非常有限的；而吸收私人的力量,動(dòng)員他們與壟斷違法行為作斗爭(zhēng),則能帶來很多公共執(zhí)法所不具備的優(yōu)勢(shì),私人訴訟能很好起到執(zhí)行反壟斷法、實(shí)現(xiàn)反壟斷法立法目的的作用。民商法的“、平等、公平誠實(shí)信用”的法律原則反映到市場(chǎng)競(jìng)爭(zhēng)領(lǐng)域,表現(xiàn)為對(duì)市場(chǎng)主體公平競(jìng)爭(zhēng)權(quán)利和合法經(jīng)濟(jì)利益的保護(hù)。然而,現(xiàn)實(shí)生活中,壟斷和限制競(jìng)爭(zhēng)的行為,不僅會(huì)損害其他經(jīng)營者和消費(fèi)者的利益,還會(huì)損害正常的市場(chǎng)競(jìng)爭(zhēng)過程和競(jìng)爭(zhēng)秩序,消費(fèi)者的選擇自由受到干涉,真實(shí)需求信號(hào)無法準(zhǔn)確傳遞,從而造成資源的錯(cuò)誤配置和消費(fèi)者福利的減損。面對(duì)競(jìng)爭(zhēng)秩序的維護(hù)單純依靠民商法是很難完成的,必須由經(jīng)濟(jì)法領(lǐng)域中的市場(chǎng)規(guī)制法進(jìn)行補(bǔ)充和矯正,使得發(fā)生扭曲的市場(chǎng)狀態(tài)恢復(fù)到正常的狀態(tài)。而經(jīng)濟(jì)法協(xié)調(diào)個(gè)體營利性和社會(huì)公益性之間矛盾的宗旨和價(jià)值追求,表明其完全支持反壟斷中的民事救濟(jì)。因此,民商法和經(jīng)濟(jì)法的規(guī)定共同奠定了反壟斷法民事救濟(jì)制度的合法性基礎(chǔ)。 第三個(gè)方面選取了美國、歐盟、英國和德國的反壟斷民事救濟(jì)制度作為域外考證,以期能夠?qū)ξ覈南嚓P(guān)研究提供參考和借鑒。從私人救濟(jì)到私人執(zhí)行,這是民事訴訟在反壟斷法領(lǐng)域內(nèi)的一次重大的角色定位的轉(zhuǎn)換,這種轉(zhuǎn)換日益成為一股強(qiáng)勁的世界潮流。為了適應(yīng)這種對(duì)私人訴訟的新的角色定位,相關(guān)國家的反壟斷法在救濟(jì)制度的設(shè)計(jì)方面,也作出了專門的規(guī)定,以期積極鼓勵(lì)私人提起訴訟,更好的阻止違法行為的發(fā)生。這些在反壟斷法領(lǐng)域比較發(fā)達(dá)的國家關(guān)于一系列具體制度的專門規(guī)定無疑對(duì)我國反壟斷法民事救濟(jì)制度的設(shè)計(jì)和構(gòu)建起到了很好的模范作用,值得參考和借鑒。 第四個(gè)方面通過分析我國反壟斷法民事救濟(jì)法律依據(jù)的原則性特點(diǎn),認(rèn)為我國《反壟斷法》第50條對(duì)壟斷行為應(yīng)承擔(dān)的民事責(zé)任僅作了原則性規(guī)定,對(duì)于民事責(zé)任的內(nèi)容未作任何細(xì)節(jié)規(guī)定,關(guān)于私人訴訟的程序制度也未作任何特殊規(guī)定,這就導(dǎo)致了在實(shí)際執(zhí)行過程中缺乏可操作性。此外,我國反壟斷民事救濟(jì)主要體現(xiàn)在反壟斷案件的處理上,而反壟斷法案件是一類非常特殊的案件,具有高度技術(shù)化、專業(yè)化、復(fù)雜化的特點(diǎn),這就為反壟斷的私人執(zhí)行帶來了諸多困難,進(jìn)而阻礙了我國反壟斷法民事救濟(jì)的開展。 第五個(gè)方面是本文的最終落腳點(diǎn),是全文最重要的部分,筆者對(duì)如何構(gòu)建我國反壟斷法民事救濟(jì)制度進(jìn)行了有益地思考和探索,詳細(xì)論述了制度設(shè)計(jì)的指導(dǎo)思想、需要完善的方向和具體的制度安排。使受害者沒有勇氣或者沒有能力提起訴訟的私人民事救濟(jì)制度形同虛設(shè),是不可取的。為此必須簡(jiǎn)化訴訟程序,優(yōu)化制度構(gòu)建,制度設(shè)計(jì)中應(yīng)當(dāng)提供足夠的激勵(lì),清除私人訴訟過程中的障礙,尤其是在救濟(jì)方式、起訴、管轄、證明、訴訟費(fèi)用、群體性訴訟等方面給予私人訴訟提供便利條件,有效發(fā)揮私人訴訟的執(zhí)法功能和救濟(jì)功能。 筆者通過對(duì)上述問題進(jìn)行辯證性分析和系統(tǒng)化研究,旨在期望為相關(guān)立法者提供可行性和建設(shè)性意見,推動(dòng)我國反壟斷法民事救濟(jì)制度的完善
[Abstract]:The relief of anti-monopoly law has always been a field in the domain of anti-monopoly law. Civil relief is an important part of the whole relief system. However, China's anti-monopoly law has made the principle of the civil liability for monopoly conduct only in Article 50. How to turn into a real civil action, how to serve the realization of the anti-monopoly law legislative purpose, and what to perfect the supporting system? These are the questions that must be answered and studied in the construction of the civil remedy system in China's anti-monopoly law. The author expects that through the dialectical analysis and systematic study of the guiding ideology and the specific supporting system in the design of the civil remedy system of the anti-monopoly law, the author points out that the civil remedy system of the anti-monopoly law in China needs to be improved, so as to provide the legislators with the feasibility and the constructive meaning. See, the article discusses the anti-monopoly civil relief system from five aspects, the content of the content The first aspect is the definition of the civil remedy of the anti-monopoly law, which is also studied in this paper. In this paper, the civil relief of the anti-monopoly law refers to the civil action of the victim to the monopolistic act, analyzes the relationship between the civil remedy of the anti-monopoly law and the private execution of the anti-monopoly law, points out the dual function of the anti-monopoly civil remedy, that is, the compensation for the victim and to assist the law enforcement and reveal the deep behind the civil remedy system of the anti-monopoly law The second aspect analyses the civil remedies of the anti-monopoly law from the perspective of necessity and legitimacy The legal basis of the system is the introduction of any legal system, which is accompanied by the development of the social form and the demand of the progress of the times, and the civil service of the anti-monopoly law The same applies to the economic system. The extraterritorial anti-monopoly practice has repeatedly confirmed that the degree of implementation of the anti-monopoly law is very limited only by public law enforcement. The non-existent advantage is that the private litigation can play an important role in the implementation of the anti-monopoly law and realize the anti-monopoly law The function of the legislative purpose. The legal principle of the ", equality, fairness and good faith" of the civil and commercial law is reflected in the market competition, and is expressed as the right and the legal right to the fair competition of the market. The protection of economic benefits. However, in the real life, the behavior of monopolizing and limiting the competition not only damages the interests of other operators and consumers, but also damages the normal market competition process and the competition order. The consumer's choice of choice is free of interference and the real demand letter The number cannot be delivered accurately, resulting in an incorrect configuration and elimination of the resource In the face of the maintenance of the competition order, it is hard to complete the civil law, and it must be supplemented and corrected by the market rules in the field of economic law, so that the distorted market situation will be changed. The purpose and value of the contradiction between the individual and the social public welfare of the economic law are the pursuit of value, which indicates that it fully supports the ridging. Therefore, the civil remedy system of the anti-monopoly law is established by the provisions of the civil and commercial law and the economic law. The third aspect has chosen the anti-monopoly civil relief system of the United States, the European Union, the United Kingdom and Germany as an extraterritoriality, so as to be able to be relevant to our country. The research provides reference and reference. From the private relief to the private execution, this is a major role of the civil action in the field of anti-monopoly law, which is becoming more and more important In order to adapt to the new role of the private litigation, the anti-monopoly law of the relevant countries has also made special provisions in the design of the relief system, with a view to actively encouraging private prosecution and better The special provisions on a series of specific systems in the more developed countries in the field of anti-monopoly law undoubtedly play a good role in the design and construction of the civil remedy system of the anti-monopoly law in China. In the fourth aspect, by analyzing the principle characteristics of the legal basis of the civil remedies of the anti-monopoly law in China, the author holds that the civil liability of China's anti-monopoly law in the case of the monopoly is only in principle, and the civil liability Nothing in the content of the content provides that there is no special provision on the procedural system for private proceedings, which has led to the actual In addition, the anti-monopoly civil remedy in China is mainly embodied in the treatment of the anti-monopoly case, and the anti-monopoly law case is a very special case, which has the characteristics of highly technical, professional and complicated, which is anti-monopoly The private execution has brought many difficulties, which in turn hampers our country The fifth aspect is the final point of the anti-monopoly law, which is the most important part of the article, and the author thinks and explores how to build the civil remedy system of the anti-monopoly law in China, and discusses the guiding ideology and needs of the system design in detail. A perfect direction and a specific institutional arrangement. The victim has no courage or is incapable of raising the private civil service of the proceedings. In order to avoid the obstacles in the process of private litigation, especially in the relief mode, the prosecution, the jurisdiction, the proof, the litigation cost, the group lawsuit, etc. to provide convenient conditions for private litigation and to play an effective role in the private sector The author analyses and systematizes the above-mentioned problems, and aims to provide the relevant legislators with feasibility and constructive opinions, and push forward
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2012
【分類號(hào)】：D922.294
本文編號(hào)：2446907
[Abstract]:The relief of anti-monopoly law has always been a field in the domain of anti-monopoly law. Civil relief is an important part of the whole relief system. However, China's anti-monopoly law has made the principle of the civil liability for monopoly conduct only in Article 50. How to turn into a real civil action, how to serve the realization of the anti-monopoly law legislative purpose, and what to perfect the supporting system? These are the questions that must be answered and studied in the construction of the civil remedy system in China's anti-monopoly law. The author expects that through the dialectical analysis and systematic study of the guiding ideology and the specific supporting system in the design of the civil remedy system of the anti-monopoly law, the author points out that the civil remedy system of the anti-monopoly law in China needs to be improved, so as to provide the legislators with the feasibility and the constructive meaning. See, the article discusses the anti-monopoly civil relief system from five aspects, the content of the content The first aspect is the definition of the civil remedy of the anti-monopoly law, which is also studied in this paper. In this paper, the civil relief of the anti-monopoly law refers to the civil action of the victim to the monopolistic act, analyzes the relationship between the civil remedy of the anti-monopoly law and the private execution of the anti-monopoly law, points out the dual function of the anti-monopoly civil remedy, that is, the compensation for the victim and to assist the law enforcement and reveal the deep behind the civil remedy system of the anti-monopoly law The second aspect analyses the civil remedies of the anti-monopoly law from the perspective of necessity and legitimacy The legal basis of the system is the introduction of any legal system, which is accompanied by the development of the social form and the demand of the progress of the times, and the civil service of the anti-monopoly law The same applies to the economic system. The extraterritorial anti-monopoly practice has repeatedly confirmed that the degree of implementation of the anti-monopoly law is very limited only by public law enforcement. The non-existent advantage is that the private litigation can play an important role in the implementation of the anti-monopoly law and realize the anti-monopoly law The function of the legislative purpose. The legal principle of the ", equality, fairness and good faith" of the civil and commercial law is reflected in the market competition, and is expressed as the right and the legal right to the fair competition of the market. The protection of economic benefits. However, in the real life, the behavior of monopolizing and limiting the competition not only damages the interests of other operators and consumers, but also damages the normal market competition process and the competition order. The consumer's choice of choice is free of interference and the real demand letter The number cannot be delivered accurately, resulting in an incorrect configuration and elimination of the resource In the face of the maintenance of the competition order, it is hard to complete the civil law, and it must be supplemented and corrected by the market rules in the field of economic law, so that the distorted market situation will be changed. The purpose and value of the contradiction between the individual and the social public welfare of the economic law are the pursuit of value, which indicates that it fully supports the ridging. Therefore, the civil remedy system of the anti-monopoly law is established by the provisions of the civil and commercial law and the economic law. The third aspect has chosen the anti-monopoly civil relief system of the United States, the European Union, the United Kingdom and Germany as an extraterritoriality, so as to be able to be relevant to our country. The research provides reference and reference. From the private relief to the private execution, this is a major role of the civil action in the field of anti-monopoly law, which is becoming more and more important In order to adapt to the new role of the private litigation, the anti-monopoly law of the relevant countries has also made special provisions in the design of the relief system, with a view to actively encouraging private prosecution and better The special provisions on a series of specific systems in the more developed countries in the field of anti-monopoly law undoubtedly play a good role in the design and construction of the civil remedy system of the anti-monopoly law in China. In the fourth aspect, by analyzing the principle characteristics of the legal basis of the civil remedies of the anti-monopoly law in China, the author holds that the civil liability of China's anti-monopoly law in the case of the monopoly is only in principle, and the civil liability Nothing in the content of the content provides that there is no special provision on the procedural system for private proceedings, which has led to the actual In addition, the anti-monopoly civil remedy in China is mainly embodied in the treatment of the anti-monopoly case, and the anti-monopoly law case is a very special case, which has the characteristics of highly technical, professional and complicated, which is anti-monopoly The private execution has brought many difficulties, which in turn hampers our country The fifth aspect is the final point of the anti-monopoly law, which is the most important part of the article, and the author thinks and explores how to build the civil remedy system of the anti-monopoly law in China, and discusses the guiding ideology and needs of the system design in detail. A perfect direction and a specific institutional arrangement. The victim has no courage or is incapable of raising the private civil service of the proceedings. In order to avoid the obstacles in the process of private litigation, especially in the relief mode, the prosecution, the jurisdiction, the proof, the litigation cost, the group lawsuit, etc. to provide convenient conditions for private litigation and to play an effective role in the private sector The author analyses and systematizes the above-mentioned problems, and aims to provide the relevant legislators with feasibility and constructive opinions, and push forward
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2012
【分類號(hào)】：D922.294
【參考文獻(xiàn)】
相關(guān)期刊論文 前10條
1 王健;;反壟斷法私人執(zhí)行的優(yōu)越性及其實(shí)現(xiàn)——兼論中國反壟斷法引入私人執(zhí)行制度的必要性和立法建議[J];法律科學(xué)(西北政法學(xué)院學(xué)報(bào));2007年04期
2 王健;;反壟斷法私人執(zhí)行制度初探[J];法商研究;2007年02期
3 張明華;;我國反壟斷立法中應(yīng)建立公益訴訟制度[J];中國工商管理研究;2007年08期
4 徐強(qiáng)勝;;論經(jīng)濟(jì)法的政策性[J];經(jīng)濟(jì)經(jīng)緯;2005年06期
5 李俊峰;張穎;;反壟斷法草案損害賠償制度的法經(jīng)濟(jì)學(xué)分析[J];經(jīng)濟(jì)評(píng)論;2006年06期
6 徐昕;法律的私人執(zhí)行[J];法學(xué)研究;2004年01期
7 顏運(yùn)秋;論反壟斷訴訟的公益性[J];南華大學(xué)學(xué)報(bào)(社會(huì)科學(xué)版);2003年03期
8 彭羽;政府失靈的成因及防范[J];前沿;2005年05期
9 顏運(yùn)秋;反壟斷法立法目的與保護(hù)消費(fèi)者權(quán)益[J];社會(huì)科學(xué)家;2005年05期
10 王伶俐;我國的反壟斷訴訟及其性質(zhì)——兼論實(shí)質(zhì)意義上的經(jīng)濟(jì)訴訟[J];西安石油學(xué)院學(xué)報(bào)(社會(huì)科學(xué)版);2003年03期
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