中美贸易壁垒调查制度比较研究
发布时间：2019-04-08 15:05
【摘要】：贸易壁垒调查制度是在自由贸易与贸易保护主义并存的国际贸易背景下产生的,以促进自由贸易、保障本国产业的出口利益、维护本国的互惠利益为目的而产生的贸易救济措施。从美国的“301条款”到中国的《对外贸易壁垒调查规则》,两者的历史演变表明：贸易壁垒调查制度作为消除贸易壁垒、维护国家贸易秩序的有力武器,其产生的根本出发点是维护国家利益；同时,两国历史发展的社会基础差异导致法的内容与理念也相应地不同。在制度架构上,除受社会历史条件、法治水平、公民的法律意识等因素影响之外,法律传统和立法技术是导致中美两国贸易壁垒调查制度在立法模式、立法理念及制度体系差异的主要原因。在适用范围、申诉主体及损害认定等实体内容上,我国和美国的贸易壁垒调查立法都赋予了主管部门较大的裁量权,但美国在具体概念的界定方面更为明确,法定标准也更具有可操作性。通过对贸易壁垒调查制度的立案、调查及裁决等程序规则的比较,我国立法的程序规定上虽具有自己的特色,但在程序的完整性及透明度上不及美国。相较美国而言,我国的贸易壁垒调查制度还存在诸多不足,可通过借鉴美国经验,完善制度体系与内容,提高立法等级,明确相关定义,增加规则的可操作性,完善听证及信息披露制度,引入行政复议及司法审查机制,协调与多边争端解决机制的关系,从而增强我国在国际贸易实务中对外贸易调查和应对外国对我国的贸易调查能力。
[Abstract]:The investigation system of trade barriers comes into being under the background of international trade in which free trade and trade protectionism coexist in order to promote free trade and safeguard the export interests of domestic industries. Trade relief measures arising for the purpose of safeguarding the mutual benefit of the country. From "Section 301" of the United States to "rules of investigation of Foreign Trade barriers", the historical evolution of the two shows that the investigation system of trade barriers is a powerful weapon for removing trade barriers and maintaining national trade order. The fundamental starting point of its emergence is to safeguard the national interests; At the same time, the differences in the social basis of the historical development of the two countries lead to different contents and concepts of the law. In the institutional framework, in addition to the social and historical conditions, the level of the rule of law, the legal awareness of citizens and other factors, legal tradition and legislative technology are leading to China and the United States trade barrier investigation system in the legislative model, The main reason of the difference of legislative idea and system. In terms of the scope of application, the subject of complaint and the determination of damages, the legislation on investigation of trade barriers in China and the United States has given the competent authorities greater discretion, but the definition of specific concepts in the United States is more clear. Statutory standards are also more operational. By comparing the procedural rules of the investigation system of trade barriers, such as case filing, investigation and adjudication, the procedural provisions of China's legislation have their own characteristics, but the integrity and transparency of the procedures are not as good as those of the United States. Compared with the United States, China's trade barrier investigation system still has many shortcomings. We can improve the system and content of the system, improve the level of legislation, clarify the relevant definitions, and increase the maneuverability of the rules by drawing lessons from the experience of the United States. Improve the hearing and information disclosure system, introduce the administrative review and judicial review mechanism, coordinate the relationship with the multilateral dispute settlement mechanism, so as to enhance the ability of foreign trade investigation and foreign trade investigation against China in the international trade practice.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D971.2;D922.295
本文编号：2454683
[Abstract]:The investigation system of trade barriers comes into being under the background of international trade in which free trade and trade protectionism coexist in order to promote free trade and safeguard the export interests of domestic industries. Trade relief measures arising for the purpose of safeguarding the mutual benefit of the country. From "Section 301" of the United States to "rules of investigation of Foreign Trade barriers", the historical evolution of the two shows that the investigation system of trade barriers is a powerful weapon for removing trade barriers and maintaining national trade order. The fundamental starting point of its emergence is to safeguard the national interests; At the same time, the differences in the social basis of the historical development of the two countries lead to different contents and concepts of the law. In the institutional framework, in addition to the social and historical conditions, the level of the rule of law, the legal awareness of citizens and other factors, legal tradition and legislative technology are leading to China and the United States trade barrier investigation system in the legislative model, The main reason of the difference of legislative idea and system. In terms of the scope of application, the subject of complaint and the determination of damages, the legislation on investigation of trade barriers in China and the United States has given the competent authorities greater discretion, but the definition of specific concepts in the United States is more clear. Statutory standards are also more operational. By comparing the procedural rules of the investigation system of trade barriers, such as case filing, investigation and adjudication, the procedural provisions of China's legislation have their own characteristics, but the integrity and transparency of the procedures are not as good as those of the United States. Compared with the United States, China's trade barrier investigation system still has many shortcomings. We can improve the system and content of the system, improve the level of legislation, clarify the relevant definitions, and increase the maneuverability of the rules by drawing lessons from the experience of the United States. Improve the hearing and information disclosure system, introduce the administrative review and judicial review mechanism, coordinate the relationship with the multilateral dispute settlement mechanism, so as to enhance the ability of foreign trade investigation and foreign trade investigation against China in the international trade practice.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D971.2;D922.295
【引证文献】
相关硕士学位论文 前1条
1 张梦华;贸易壁垒调查法律制度发展趋势研究[D];大连海事大学;2012年
，本文编号：2454683
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