美国垄断致损赔偿责任制度研究
发布时间：2018-08-27 15:35
【摘要】：随着我国市场经济的不断发展,垄断所导致的损害问题(比如360与腾讯的垄断损害纠纷)越来越受到社会的关注。对垄断导致的损害应当进行赔偿,在法学界已经形成共识,但是垄断致损赔偿的性质如何、赔偿的范围怎样、赔偿的构成要件包括哪些,在法学界仍然欠缺深入的探讨。目前,我国法学界对垄断问题的研究主要集中在垄断本身,而对于垄断造成损害的赔偿研究则严重不足,司法实践也进展缓慢,亟待系统深入的研究。作为世界上制定反垄断法较早的国家,美国在反垄断的实施层面亦为全球领先。这种领先地位的取得,同垄断致损赔偿责任制度在美国的发展壮大息息相关。美国垄断致损赔偿责任制度发展和完善的历史脉络表明,“制定法先行”的特征使得美国垄断致损赔偿责任制度呈现出类似于大陆法系下侵权责任的结构。就赔偿权利人和损害事实而言,美国在司法实践中以制定法的基本精神为指导,通过案例形成了“直接损害规则”和“间接购买者规则”,前者用于甄别垄断致损赔偿责任诉讼中的原告是否适格,后者则将作为间接购买者的消费者排除在适格赔偿权利人的范围之外。而对于损害事实,美国司法实践中以判例的方式明确了只有具备“垄断性损害”特质的被损害权利和受损失利益,才是垄断致损赔偿责任制度救济的对象。就垄断行为和过错而言,尽管美国学说和判例均认可过错是垄断致损赔偿责任的一个要件,但在对垄断行为“违法性”的细化中导致了“过错认定”的分野,“过错”不是垄断致损赔偿责任的必然构成要件,它只和部分“违法性”垄断行为相连共同成为垄断致损赔偿责任之构成要件。这种过错的“淡化”趋势从一个侧面表明,美国垄断致损赔偿责任是以“客观责任”为主的侵权责任形式。就因果关系而言,“本身违法”和“合理原则”的运用是因果关系检测的基本原则,任何有关垄断致损赔偿责任因果关系的证明都必须在“本身违法”和“合理原则”的指导下进行。随着时代的进步,“本身违法”的适用空间不断缩小,而“合理原则”的地位却日益凸显。围绕“合理原则”的要求,对影响市场势力的各要素进行分析,成了美国垄断致损赔偿责任之因果关系证明的主要内容。就损害的赔偿而言,包括标尺比较法、前后比较法、市场份额法以及持续经营法在内的四种损害计算方式,都是围绕着“利于操作且能发挥罚则功效”的理念展开的。“三倍赔偿”作为美国垄断致损赔偿责任制度的标志,从国会通过《谢尔曼法》之日起就发挥着巨大作用。上个世纪80年代以来,为打消不断出现的质疑声,也为了促进“三倍赔偿”规则适应形势的新变化,对“三倍赔偿”的合理性进行解释有了新发展。美国垄断致损赔偿责任制度的先进理论和成熟实践经验,对我国垄断致损赔偿责任制度有着积极的借鉴意义:首先,通过明确垄断致损赔偿责任的侵权属性和赔偿责任主体的范围、细化垄断行为的种类、淡化“过错”的认定以及完善因果关系的证明机制等五方面措施,可以完善我国垄断致损赔偿责任的构成要件体系;其次,在借鉴美国损害计算方式的基础上,有条件地引入“三倍赔偿”罚则,能达到健全损害的赔偿机制的目标;再次,从法治环境建设的角度而言,规范法官的自由裁量权和重视反垄断法政策的运用,当能显著改善我国垄断致损赔偿责任制度实施;最后,学习美国经验,不断协调垄断致损赔偿责任实施与反垄断行政执法的关系,可以促进我国反垄断法律制度的不断发展。
[Abstract]:With the continuous development of China's market economy, the damage caused by monopoly (such as the dispute between 360 and Tencent) has attracted more and more attention from the society. There is a consensus in the legal circles that the damages caused by monopoly should be compensated. But what is the nature of the compensation for monopoly damage, the scope of compensation and the elements of compensation? At present, the research on monopoly in China is mainly concentrated on monopoly itself, while the research on compensation for damages caused by monopoly is seriously insufficient, and the judicial practice is also slow and needs to be studied systematically and thoroughly. This kind of leading position is closely related to the development of the system of liability for damages caused by monopoly in the United States. It is similar to the structure of tort liability under the continental law system. As far as the obligee of compensation and the fact of damage are concerned, the United States, guided by the basic spirit of statute law, has formed the "direct damage rule" and "indirect buyer rule" through cases. The former is used to distinguish whether the plaintiff is qualified in the litigation of liability for damages caused by monopoly, while the latter is used to distinguish the plaintiff from the plainti As for the damaged facts, the American judicial practice has made it clear that only the damaged rights and interests with the characteristics of "monopolistic damage" are the objects of relief under the monopolistic damages liability system. As far as fault is concerned, although both American doctrine and jurisprudence agree that fault is an important element of the liability for damages caused by monopoly, in the refinement of the "illegality" of monopoly behavior, it leads to the division of "fault determination", "fault" is not an inevitable component of the liability for damages caused by monopoly, it is only connected with part of the "illegality" monopoly behavior. This trend of "dilution" of the fault shows from one side that the liability for damages caused by monopoly in the United States is mainly a form of tort liability based on "objective liability". With the progress of the times, the applicable space of "self-violation" is shrinking, while the status of "reasonable principle" is becoming increasingly prominent. The analysis of the factors has become the main content of the proof of the causality of the liability for damages caused by monopoly in the United States.As far as the compensation for damages is concerned, the four methods of calculating damages, including the scale comparison method, the front and back comparison method, the market share method and the continuing operation method, all revolve around the idea of "facilitating operation and exerting the effect of penalties". Triple indemnity, as the symbol of the American monopoly liability system for damages, has played an important role since the adoption of the Sherman Act by Congress. The advanced theory and mature practical experience of the American system of compensation for damages caused by monopoly have a positive reference for China's system of compensation for damages caused by monopoly. Firstly, by clarifying the tort attributes of the liability for damages caused by monopoly and the scope of the subject of compensation, we can refine the types of monopoly and dilute the "fault" liability. Five measures, such as the confirmation of "triple compensation" and the perfection of the proof mechanism of causality, can perfect the constitutive elements of the liability for damages caused by monopoly in China; secondly, on the basis of drawing lessons from the United States damage calculation method, the introduction of "triple compensation" penalty can achieve the goal of perfecting the compensation mechanism for damages; thirdly, from the legal environment; From the perspective of construction, standardizing the discretion of judges and attaching importance to the application of anti-monopoly law and policy can significantly improve the implementation of China's anti-monopoly liability system for damages caused by monopoly; finally, learning from the experience of the United States, and constantly coordinating the implementation of the liability for damages caused by monopoly with the implementation of anti-monopoly administrative law enforcement, can promote the non-monopoly of China's anti-monopoly legal system. Break the development.
【学位授予单位】：湖南大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D971.2;DD912.29
，
本文编号：2207706
[Abstract]:With the continuous development of China's market economy, the damage caused by monopoly (such as the dispute between 360 and Tencent) has attracted more and more attention from the society. There is a consensus in the legal circles that the damages caused by monopoly should be compensated. But what is the nature of the compensation for monopoly damage, the scope of compensation and the elements of compensation? At present, the research on monopoly in China is mainly concentrated on monopoly itself, while the research on compensation for damages caused by monopoly is seriously insufficient, and the judicial practice is also slow and needs to be studied systematically and thoroughly. This kind of leading position is closely related to the development of the system of liability for damages caused by monopoly in the United States. It is similar to the structure of tort liability under the continental law system. As far as the obligee of compensation and the fact of damage are concerned, the United States, guided by the basic spirit of statute law, has formed the "direct damage rule" and "indirect buyer rule" through cases. The former is used to distinguish whether the plaintiff is qualified in the litigation of liability for damages caused by monopoly, while the latter is used to distinguish the plaintiff from the plainti As for the damaged facts, the American judicial practice has made it clear that only the damaged rights and interests with the characteristics of "monopolistic damage" are the objects of relief under the monopolistic damages liability system. As far as fault is concerned, although both American doctrine and jurisprudence agree that fault is an important element of the liability for damages caused by monopoly, in the refinement of the "illegality" of monopoly behavior, it leads to the division of "fault determination", "fault" is not an inevitable component of the liability for damages caused by monopoly, it is only connected with part of the "illegality" monopoly behavior. This trend of "dilution" of the fault shows from one side that the liability for damages caused by monopoly in the United States is mainly a form of tort liability based on "objective liability". With the progress of the times, the applicable space of "self-violation" is shrinking, while the status of "reasonable principle" is becoming increasingly prominent. The analysis of the factors has become the main content of the proof of the causality of the liability for damages caused by monopoly in the United States.As far as the compensation for damages is concerned, the four methods of calculating damages, including the scale comparison method, the front and back comparison method, the market share method and the continuing operation method, all revolve around the idea of "facilitating operation and exerting the effect of penalties". Triple indemnity, as the symbol of the American monopoly liability system for damages, has played an important role since the adoption of the Sherman Act by Congress. The advanced theory and mature practical experience of the American system of compensation for damages caused by monopoly have a positive reference for China's system of compensation for damages caused by monopoly. Firstly, by clarifying the tort attributes of the liability for damages caused by monopoly and the scope of the subject of compensation, we can refine the types of monopoly and dilute the "fault" liability. Five measures, such as the confirmation of "triple compensation" and the perfection of the proof mechanism of causality, can perfect the constitutive elements of the liability for damages caused by monopoly in China; secondly, on the basis of drawing lessons from the United States damage calculation method, the introduction of "triple compensation" penalty can achieve the goal of perfecting the compensation mechanism for damages; thirdly, from the legal environment; From the perspective of construction, standardizing the discretion of judges and attaching importance to the application of anti-monopoly law and policy can significantly improve the implementation of China's anti-monopoly liability system for damages caused by monopoly; finally, learning from the experience of the United States, and constantly coordinating the implementation of the liability for damages caused by monopoly with the implementation of anti-monopoly administrative law enforcement, can promote the non-monopoly of China's anti-monopoly legal system. Break the development.
【学位授予单位】：湖南大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D971.2;DD912.29
，
本文编号：2207706
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