联邦最高法院的反托拉斯理念与实践-1890至1920年
发布时间：2018-10-12 20:16
【摘要】： 19世纪末到20世纪初,托拉斯的出现引起美国国家权力、公民权利与企业权利之间矛盾的激化,问题摆在了联邦最高法院面前,可最高法院的回应却不甚明朗。本文以案例梳理为基础,分析最高法院1890年至1920年间对经济垄断行为的态度,发现其呈现出反复的态势,同时试图挖掘背后的司法理念并总结归纳反复的原因与意义。本文分为三章。 第一章简单介绍了研究背景,这一部分从社会、经济、政治多角度阐述美国当时社会概况。19世纪末的美国,托拉斯问题突显,经济集中趋势明显。普通民众的权利被侵害,要求国家管制托拉斯的呼声日益强烈;国会通过《谢尔曼法》作出遏制托拉斯的姿态;政府则积极行动加强打击托拉斯的力度、扩大管制企业的权力,展现在联邦最高法院面前的就是这样一个场景。 第二章分析了联邦最高法院的相关案例,从中可以看出最高法院时而支持反托拉斯行动时而又持否定态度,反复的趋势明显。例如1895年的奈特案,大法官富勒把联邦管理商业的权力限制在狭小的范围内,而在接下来的案件中,大法官哈兰与霍姆斯都在明显地限制奈特案确立的原则,从而扩大了联邦政府对商业管理的领域。又如最高法院关于《谢尔曼法》第2条“从事垄断”的解释,历经了一个从宽到严的变化。由单一证明垄断地位到证明垄断地位、垄断行为与垄断意图三个条件,加重了起诉方的证明责任从而加大了保护企业的力度。 第三章探讨了最高法院的反托拉斯理念及其形成原因。理念有二,一是限制解释《谢尔曼法》从而保护企业自由竞争之权利,二是扩张解释《谢尔曼法》进而支持政府管制企业之权力。在两种理念的导向下,最高法院选择在“自由”和“管制”两条道路上前行,建立起一种包含了这两个理念的进程。原因有以下几个方面:美国国内形势的变化促使了最高法院司法理念的变迁,最高法院受到社会达尔文主义和进步主义思潮的双重影响;美国法律传统中崇尚自由和竞争的意识使最高法院左右为难;企业的自由度与政府干预度是美国反垄断法的核心矛盾,矛盾不可避免也无法一劳永逸地完美解决。
[Abstract]:From the end of the 19th century to the beginning of the 20th century, the appearance of trust caused the contradiction between American state power, civil rights and enterprise rights to intensify, and the problem was put before the Federal Supreme Court, but the response of the Supreme Court was not very clear. On the basis of case combing, this paper analyzes the Supreme Court's attitude to economic monopoly from 1890 to 1920, and finds that it presents a repeated trend. At the same time, it tries to excavate the judicial idea behind it and sums up the reasons and significance of repeated induction. This paper is divided into three chapters. The first chapter briefly introduces the background of the research. This part expounds the social situation of the United States from the social, economic and political perspectives. In the late 19th century, the trust problem was highlighted, and the trend of economic concentration was obvious. The rights of ordinary people have been violated, and there are growing calls for the state to regulate the trust; Congress has adopted the Sherman Act to contain the trust; and the government has taken active action to strengthen the fight against trust and expand the power to regulate enterprises. This is the scene before the Supreme Court. The second chapter analyzes the relevant cases of the Federal Supreme Court, from which we can see that the Supreme Court sometimes supports the action of antitrust and holds a negative attitude, and the trend of repetition is obvious. In the Knight case of 1895, for example, Chancellor Fuller confined the power of federal administration of commerce to a narrow range, while in the subsequent cases, justices Harlan and Holmes clearly limited the principles established in the Knight case. This expanded the federal government's field of business management. The Supreme Court's interpretation of section 2 of the Sherman Act, "Monopoly," has undergone a lenient to severe change. There are three conditions from the mono-proof monopoly position to the certified monopoly position, the monopoly behavior and the monopoly intention, which aggravate the burden of proof of the prosecution party and increase the strength of protecting the enterprise. The third chapter discusses the anti-trust concept of the Supreme Court and its formation reasons. There are two ideas: one is to limit the interpretation of Sherman Act to protect the right of enterprises to compete freely; the other is to expand interpretation of Sherman Law to support the power of government to regulate enterprises. Under the guidance of two ideas, the Supreme Court chose to move forward on the two roads of "freedom" and "regulation", and set up a process that contains these two ideas. The reasons are as follows: the changes of the domestic situation in the United States prompted the change of the Supreme Court's judicial concept, which was influenced by both social Darwinism and progressive thought; The sense of freedom and competition in the tradition of American law makes the Supreme Court in a dilemma. The freedom of enterprise and the degree of government intervention are the core contradictions of American antimonopoly law, and the contradiction can't be solved perfectly once and for all.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D971.2
本文编号：2267461
[Abstract]:From the end of the 19th century to the beginning of the 20th century, the appearance of trust caused the contradiction between American state power, civil rights and enterprise rights to intensify, and the problem was put before the Federal Supreme Court, but the response of the Supreme Court was not very clear. On the basis of case combing, this paper analyzes the Supreme Court's attitude to economic monopoly from 1890 to 1920, and finds that it presents a repeated trend. At the same time, it tries to excavate the judicial idea behind it and sums up the reasons and significance of repeated induction. This paper is divided into three chapters. The first chapter briefly introduces the background of the research. This part expounds the social situation of the United States from the social, economic and political perspectives. In the late 19th century, the trust problem was highlighted, and the trend of economic concentration was obvious. The rights of ordinary people have been violated, and there are growing calls for the state to regulate the trust; Congress has adopted the Sherman Act to contain the trust; and the government has taken active action to strengthen the fight against trust and expand the power to regulate enterprises. This is the scene before the Supreme Court. The second chapter analyzes the relevant cases of the Federal Supreme Court, from which we can see that the Supreme Court sometimes supports the action of antitrust and holds a negative attitude, and the trend of repetition is obvious. In the Knight case of 1895, for example, Chancellor Fuller confined the power of federal administration of commerce to a narrow range, while in the subsequent cases, justices Harlan and Holmes clearly limited the principles established in the Knight case. This expanded the federal government's field of business management. The Supreme Court's interpretation of section 2 of the Sherman Act, "Monopoly," has undergone a lenient to severe change. There are three conditions from the mono-proof monopoly position to the certified monopoly position, the monopoly behavior and the monopoly intention, which aggravate the burden of proof of the prosecution party and increase the strength of protecting the enterprise. The third chapter discusses the anti-trust concept of the Supreme Court and its formation reasons. There are two ideas: one is to limit the interpretation of Sherman Act to protect the right of enterprises to compete freely; the other is to expand interpretation of Sherman Law to support the power of government to regulate enterprises. Under the guidance of two ideas, the Supreme Court chose to move forward on the two roads of "freedom" and "regulation", and set up a process that contains these two ideas. The reasons are as follows: the changes of the domestic situation in the United States prompted the change of the Supreme Court's judicial concept, which was influenced by both social Darwinism and progressive thought; The sense of freedom and competition in the tradition of American law makes the Supreme Court in a dilemma. The freedom of enterprise and the degree of government intervention are the core contradictions of American antimonopoly law, and the contradiction can't be solved perfectly once and for all.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D971.2
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相关期刊论文 前4条
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