论欧美反垄断群体诉讼制度及其对我国的启示
发布时间：2019-04-21 21:01
【摘要】：一百多年的反垄断实践证明,作为“经济宪法”,反垄断法的有效实施对国家的发展与市场经济的维护具有无比重要的作用。“徒法不足以自行”,要充分发挥反垄断法的作用,不仅需要一部完善的反垄断法律,更需要行之有效的反垄断执行措施。只有当公共执行与私人执行共同作用,服务于反垄断法的执行,才能够发挥反垄断法的目的与效果。随着反垄断法在我国的实施,反垄断民事诉讼将成为法院新审判领域,反垄断群体诉讼也将逐渐增多。在一些情况下,垄断行为的受害者人数众多,因而总体损害巨大,但是每一个个体的受害者,单独起诉缺乏动力,受害者的权益得不到保护。此时提起群体诉讼可以激励与推动起诉,保护每个受损者的利益,维护市场的公平竞争。然而,我国的群体诉讼制度并不完善,借鉴美国与欧盟的成功经验和建议对我国反垄断法全面实施具有重要意义。本文旨在结合我国群体诉讼制度的现状,通过借鉴美国集团诉讼以及欧盟构建反垄断群体诉讼的构想与尝试,对构建我国反垄断群体诉讼制度提出相应的建议。 本论文分为六个部分,各部分主要内容如下: 前言主要介绍了本文的写作动机和写作目的。 第一章介绍反垄断私人执行制度与反垄断群体诉讼,以期为下文的叙述做好铺垫。第一节为反垄断私人执行制度的概述,主要介绍反垄断私人执行与公共执行、集中型私人执行制度与分散型私人执行制度,并对美国私人执行制度、欧盟私人执行制度的立法与实践以及我国的反垄断私人执行进行简要介绍。第二节着重介绍反垄断群体诉讼制度,并分析讨论反垄断私人执行制度中与群体诉讼相关的四个因素,包括赔偿数额的确定、风险代理收费、证据开示制度、诉讼费的收取。 第二章主要介绍美国反垄断集团诉讼。第一节介绍美国集团诉讼的概念、构成条件、历史沿革以及集团诉讼的立法目的,同时讨论集团诉讼存在的问题与争议,以其为比较和借鉴美国反垄断集团诉讼做好铺垫;第二节介绍美国反垄断集团诉讼的概念和适用条件,反垄断集团诉讼在美国的兴衰,并简要讨论针对美国反垄断集团诉讼的主要批评。 第三章主要介绍欧盟在构建与完善反垄断群体诉讼制度方面的经验与借鉴。第一节介绍欧盟反垄断群体诉讼制度概况,包括欧盟层面与成员国层面两个方面。第二节着重介绍欧盟2005年绿皮书与2008年白皮书中有关构建群体诉讼的建议,特别是2008年白皮书中所提出的团体代表诉讼与“选择性加入”集团诉讼这两种群体诉讼方式。第三节讨论白皮书中针对群体诉讼的建议所存在的不足。 第四章主要提出有关完善我国反垄断群体诉讼制度的建议。第一节介绍我国群体诉讼现状。第二节提出有关完善我国反垄断群体诉讼制度的建议。短期建议包括通过最高法院的司法解释对有关反垄断代表人诉讼制度进行构建和完善;赋予法院更加积极的作用;加强律师在反垄断代表人诉讼制度中的作用;完善诉讼担当制度,发展团体诉权,即赋予某些团体诉权,由他们代表权利人提起诉讼。长期建议包括构建与完善相关法律规定;反垄断群体诉讼由中级人民法院以上人民法院管辖;完善程序正当化机制,如原告的退出权、充分代表权和通知制度等;进行诉讼费用改革;赔偿制度的修改与完善;完善证据开示制度,私人执行可直接援引公共执行确定的证据。 在结论部分中作者对本文的主要观点做了总结,并对各章节所讨论的主要问题提出了针对性的论点。
[Abstract]:The anti-monopoly practice of more than one hundred years has proved that as a "economic constitution", the effective implementation of the anti-monopoly law has an important role in the development of the country and the maintenance of the market economy. "The method is not sufficient for itself", to give full play to the role of anti-monopoly law, not only need a perfect anti-monopoly law, but also need effective anti-monopoly enforcement measures. The purpose and effect of the anti-monopoly law can only be played when the public implementation and the private execution act together and the service is in the enforcement of the anti-monopoly law. With the implementation of the anti-monopoly law in our country, the anti-monopoly civil action will become the new trial area of the court, and the anti-monopoly group lawsuit will gradually increase. In some cases, the number of victims of a monopoly act is so large that the overall damage is enormous, but the victim of each individual, individual prosecution of a lack of power, the rights and interests of the victims are not protected. At this time, the prosecution of the group can stimulate and promote the prosecution, protect the interests of each of the injured, and maintain the fair competition in the market. However, it is of great significance to draw on the successful experiences and suggestions of the United States and the European Union for the full implementation of the anti-monopoly law in our country. The purpose of this paper is to put forward corresponding suggestions on the construction of the anti-monopoly group lawsuit system in our country by reference to the current situation of the group lawsuit system of our country, by using the American Group's lawsuit and the idea and attempt of the EU to build the anti-monopoly group lawsuit. The thesis is divided into six parts, the main contents of each part The following: The preface mainly introduces the writing motivation of this paper The first chapter introduces the anti-monopoly private execution system and the anti-monopoly group lawsuit, in order to The first part is an overview of the anti-monopoly private execution system, mainly introduces the private enforcement and public execution of the anti-monopoly, the centralized private execution system and the decentralized private execution system, and also The American Private Execution System, the Legislation and Practice of the European Union's Private Implementation System and the Anti-monopoly Private System in China The second section mainly introduces the anti-monopoly group litigation system, and analyzes the four factors related to the group lawsuit in the anti-monopoly private execution system, including the determination of the compensation amount, the risk agent charging and the evidence opening system. The charging of legal fees. The second chapter mainly The first section introduces the concept, composition, history and the legislative purpose of the Group's litigation, and discusses the problems and disputes in the group's litigation, so as to compare and draw on the United States. In the second section, the article introduces the concept and application of the action of the anti-monopoly group in the United States, the rise and fall of the anti-monopoly group in the United States, and briefly discusses the anti-monopoly group in the United States. The third chapter mainly introduces the construction and perfection of the anti-monopoly of the EU The first part introduces the general situation of the EU anti-monopoly group lawsuit system, which includes the following: Two aspects of the EU and the Member States. Section II focuses on the EU green paper for 2005 and the recommendations of the 2008 white paper on the construction of group litigation, in particular in the 2008 white paper, the group's representative actions and the "selective context" Group proceedings. Section III discusses the needle in the white paper The deficiencies in the recommendations of group-based litigation are the main points of the fourth chapter. On the Perfection of the System of the Anti-monopoly Group in China The first part introduces the present situation of the group litigation in our country. In order to perfect the system of the anti-monopoly group, the short-term suggestion includes the construction and improvement of the legal system of the anti-monopoly representative through the judicial interpretation of the Supreme Court, giving the court more active role, and strengthening the work of the lawyer in the legal system of the anti-monopoly representative. to use; to perfect the system of action and to develop a group's right of action, that is, to give some The right of a group to bring a suit on behalf of the obligee. The long-term recommendation includes the construction and improvement of the relevant legal provisions; the action of the anti-monopoly group shall be governed by the people's court above the intermediate people's court; the proper mechanism of the procedure is improved, such as the right of the plaintiff to withdraw, and the full generation The right and the notification system, etc.; the reform of the cost of the litigation; the modification and improvement of the compensation system; the improvement of the evidence opening system and the private property; In the conclusion part, the author sums up the main points of view and is
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D971.2;D95;D925.1
本文编号：2462551
[Abstract]:The anti-monopoly practice of more than one hundred years has proved that as a "economic constitution", the effective implementation of the anti-monopoly law has an important role in the development of the country and the maintenance of the market economy. "The method is not sufficient for itself", to give full play to the role of anti-monopoly law, not only need a perfect anti-monopoly law, but also need effective anti-monopoly enforcement measures. The purpose and effect of the anti-monopoly law can only be played when the public implementation and the private execution act together and the service is in the enforcement of the anti-monopoly law. With the implementation of the anti-monopoly law in our country, the anti-monopoly civil action will become the new trial area of the court, and the anti-monopoly group lawsuit will gradually increase. In some cases, the number of victims of a monopoly act is so large that the overall damage is enormous, but the victim of each individual, individual prosecution of a lack of power, the rights and interests of the victims are not protected. At this time, the prosecution of the group can stimulate and promote the prosecution, protect the interests of each of the injured, and maintain the fair competition in the market. However, it is of great significance to draw on the successful experiences and suggestions of the United States and the European Union for the full implementation of the anti-monopoly law in our country. The purpose of this paper is to put forward corresponding suggestions on the construction of the anti-monopoly group lawsuit system in our country by reference to the current situation of the group lawsuit system of our country, by using the American Group's lawsuit and the idea and attempt of the EU to build the anti-monopoly group lawsuit. The thesis is divided into six parts, the main contents of each part The following: The preface mainly introduces the writing motivation of this paper The first chapter introduces the anti-monopoly private execution system and the anti-monopoly group lawsuit, in order to The first part is an overview of the anti-monopoly private execution system, mainly introduces the private enforcement and public execution of the anti-monopoly, the centralized private execution system and the decentralized private execution system, and also The American Private Execution System, the Legislation and Practice of the European Union's Private Implementation System and the Anti-monopoly Private System in China The second section mainly introduces the anti-monopoly group litigation system, and analyzes the four factors related to the group lawsuit in the anti-monopoly private execution system, including the determination of the compensation amount, the risk agent charging and the evidence opening system. The charging of legal fees. The second chapter mainly The first section introduces the concept, composition, history and the legislative purpose of the Group's litigation, and discusses the problems and disputes in the group's litigation, so as to compare and draw on the United States. In the second section, the article introduces the concept and application of the action of the anti-monopoly group in the United States, the rise and fall of the anti-monopoly group in the United States, and briefly discusses the anti-monopoly group in the United States. The third chapter mainly introduces the construction and perfection of the anti-monopoly of the EU The first part introduces the general situation of the EU anti-monopoly group lawsuit system, which includes the following: Two aspects of the EU and the Member States. Section II focuses on the EU green paper for 2005 and the recommendations of the 2008 white paper on the construction of group litigation, in particular in the 2008 white paper, the group's representative actions and the "selective context" Group proceedings. Section III discusses the needle in the white paper The deficiencies in the recommendations of group-based litigation are the main points of the fourth chapter. On the Perfection of the System of the Anti-monopoly Group in China The first part introduces the present situation of the group litigation in our country. In order to perfect the system of the anti-monopoly group, the short-term suggestion includes the construction and improvement of the legal system of the anti-monopoly representative through the judicial interpretation of the Supreme Court, giving the court more active role, and strengthening the work of the lawyer in the legal system of the anti-monopoly representative. to use; to perfect the system of action and to develop a group's right of action, that is, to give some The right of a group to bring a suit on behalf of the obligee. The long-term recommendation includes the construction and improvement of the relevant legal provisions; the action of the anti-monopoly group shall be governed by the people's court above the intermediate people's court; the proper mechanism of the procedure is improved, such as the right of the plaintiff to withdraw, and the full generation The right and the notification system, etc.; the reform of the cost of the litigation; the modification and improvement of the compensation system; the improvement of the evidence opening system and the private property; In the conclusion part, the author sums up the main points of view and is
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D971.2;D95;D925.1
【参考文献】
相关期刊论文 前1条
1 沈志韬;;从国际经验看中国反垄断私人执行制度的建立[J];世界贸易组织动态与研究;2010年03期
，本文编号：2462551
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