WTO保障措施法上的权利与权力
发布时间：2018-08-20 09:19
【摘要】：保障措施是WTO的一项重要贸易救济措施。在现有WTO保障措施法律制度有待完善、WTO成员保障措施实践蓬勃发展的现状下,为深化和细化对WTO保障措施法律制度的认识、为提供对WTO成员保障措施实践明确性和可操作性的指引、为探索WTO保障措施法律制度发展的推动力量和未来趋势,对WTO保障措施法上的权利与权力进行研究很有必要。 本文包括引言、正文、结语三部分。在引言部分,首先对本文选题的理论和现实意义进行了介绍,其次综述了与本文选题相关的中英文文献,并做了评述,再次指出了本文研究中拟使用的主要方法。 正文部分分为四章,主要内容如下： 第一章是对权利、权力及其相互关系理论、WTO保障措施法基本问题以及前述理论在WTO保障措施法上的运用的介绍。该章首先介绍了以国内法为视角的权利、权力及其相互关系的法理学理论,然后介绍了WTO保障措施法的概念、原则、渊源、历史发展和价值取向等WTO保障措施法的基础理论问题,最后阐述了权利、权力及其关系理论在WTO保障措施法上进行运用的可能性与解释力不及的范围。 第二章是对WTO保障措施法制定和解释中的权力的探讨。该章选择了WTO保障措施法上的法律制定权和法律解释权两种权力,分别探讨了其各自的权力目标、权力主体、权力行使方式和权力行使成果,并认为该两种权力分别代表着WTO保障措施法的贸易保护和主权利益两种价值取向。 第三章是对WTO保障措施法实施中的权利的探讨。该章选择了WTO保障措施法上的保障措施实施权、中止减让权、成员表达意愿权这三种权利,分别探讨了其各自的权利主体、规则体系或行使方式,并认为该三种权利中,前两种代表着WTO保障措施法的贸易保护价值取向,而第三种代表着主权利益价值取向。 第四章是对WTO保障措施法上的权利、权力制约与平衡机制的论述。在该章中,首先,该章从保障措施实施权的主动性与中止减让权的后发性上论述了两权利间的相互制约关系,从保障措施适格性标准这一联系纽带上论述了两权利间的相互平衡关系,从成员表达意愿权对前述两权利的影响上论述了权利对权利的影响关系；其次,该章从WTO保障措施法上的法律制定权和法律解释权对保障措施实施权施加影响上,论述了权力影响权利的结果是使WTO保障措施法律规则趋于严格,从WTO保障措施法上的成员表达意愿权对法律制定权、法律解释权施加影响上,论述了权利影响权力的结果是使WTO保障措施法律规则易于为己所用,并总结了WTO保障措施法上的权力和权利对保障措施使用难易程度的影响情况；再次,该章从权力位阶、运行效果、组织机构等角度论述了WTO保障措施法上的WTO协议法律制定权与争端解决机构法律解释权之间的相互制衡关系,并据此尝试对WTO保障措施法未来发展趋势做出预测。 结语部分是就WTO保障措施法上的权利与权力研究对发展中国家之启示的思考,本部分根据对WTO保障措施法上的每一项权力和权利的认识以及对WTO保障措施法发展趋势的展望,对WTO发展中国家成员如何在保障措施实践中把握机遇提出了一些建议。
[Abstract]:Safeguard measures are an important trade remedy measure of WTO. Under the current situation that the legal system of WTO safeguard measures needs to be improved and the practice of WTO member safeguard measures is flourishing, in order to deepen and refine the understanding of the legal system of WTO safeguard measures, to provide clear and operable guidelines for the practice of WTO member safeguard measures, and to explore WTO safeguard measures. The impetus and future trend of the development of the legal system of barrier measures make it necessary to study the rights and powers in the WTO safeguards law.
This paper consists of three parts: the introduction, the main body and the conclusion. In the introduction part, firstly, the theoretical and practical significance of the topic is introduced. Secondly, the Chinese and English literature related to the topic is summarized and commented, and the main methods to be used in this study are pointed out again.
The main body is divided into four chapters. The main contents are as follows:
Chapter one introduces the theory of rights, powers and their interrelations, the basic problems of WTO safeguards law and the application of the above-mentioned theory in WTO safeguards law.This chapter first introduces the jurisprudential theory of rights, powers and their interrelations from the perspective of domestic law, and then introduces the concept, principles, origins and history of WTO safeguards law. The basic theoretical issues of the WTO safeguard law, such as historical development and value orientation, are discussed. Finally, the possibility and scope of the application of the theory of right, power and its relationship in the WTO safeguard law are expounded.
Chapter two discusses the power in the formulation and interpretation of the WTO safeguards law. This chapter chooses two kinds of powers in the WTO safeguards law, namely, the right to formulate laws and the right to interpret laws, and discusses their respective power objectives, power subjects, ways of power exercise and the results of power exercise, and holds that these two powers represent the WTO safeguards measures respectively. The two value orientations of trade protection and sovereign interests are applied.
Chapter 3 is the discussion of the rights in the implementation of the WTO safeguard measures law.It chooses the three rights in the WTO safeguard measures law, namely, the right to implement safeguard measures, the right to suspend concessions and the right to express the will of the members, and discusses their respective subject of rights, the rules system or the way of exercising them respectively. The trade protection value orientation of the measure law, and the third represents the value orientation of sovereignty interest.
Chapter Four discusses the rights, power restriction and balance mechanism in the WTO safeguards law. First of all, this chapter discusses the mutual restriction between the two rights from the initiative of the safeguards implementation right and the backwardness of the suspension of concession right, and discusses the phase between the two rights from the link of the safeguards eligibility standard. The relationship of mutual balance is discussed in terms of the influence of the member's right to express his will on the two rights mentioned above; secondly, the chapter discusses the influence of the right to formulate and interpret the law on the implementation of the safeguard measures in the WTO safeguard measures law, and the result of the influence of the power on the right is that the legal rules of the WTO safeguard measures tend to be changed. Strictly speaking, from the perspective of the member's right to express his will to exert influence on the legislative power and the legal interpretation power, this paper discusses that the result of the influence of the right on the power is to make the legal rules of WTO safeguards easy to use for oneself, and summarizes the influence of the power and the right on the ease of using safeguards in the WTO safeguards law. Thirdly, this chapter discusses the checks and balances between the right to formulate WTO agreements and the right to interpret WTO disputes settlement bodies'laws in the WTO safeguards law from the perspective of power rank, operation effect and organization, and tries to predict the future development trend of WTO safeguards law.
The conclusion part is about the Enlightenment of the study on the rights and powers in the WTO safeguards law to the developing countries. According to the understanding of each power and right in the WTO safeguards law and the prospect of the development trend of the WTO safeguards law, this part puts forward how to grasp the opportunities in the practice of safeguards for the developing countries. Some suggestions.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D996.1
，
本文编号：2193127
[Abstract]:Safeguard measures are an important trade remedy measure of WTO. Under the current situation that the legal system of WTO safeguard measures needs to be improved and the practice of WTO member safeguard measures is flourishing, in order to deepen and refine the understanding of the legal system of WTO safeguard measures, to provide clear and operable guidelines for the practice of WTO member safeguard measures, and to explore WTO safeguard measures. The impetus and future trend of the development of the legal system of barrier measures make it necessary to study the rights and powers in the WTO safeguards law.
This paper consists of three parts: the introduction, the main body and the conclusion. In the introduction part, firstly, the theoretical and practical significance of the topic is introduced. Secondly, the Chinese and English literature related to the topic is summarized and commented, and the main methods to be used in this study are pointed out again.
The main body is divided into four chapters. The main contents are as follows:
Chapter one introduces the theory of rights, powers and their interrelations, the basic problems of WTO safeguards law and the application of the above-mentioned theory in WTO safeguards law.This chapter first introduces the jurisprudential theory of rights, powers and their interrelations from the perspective of domestic law, and then introduces the concept, principles, origins and history of WTO safeguards law. The basic theoretical issues of the WTO safeguard law, such as historical development and value orientation, are discussed. Finally, the possibility and scope of the application of the theory of right, power and its relationship in the WTO safeguard law are expounded.
Chapter two discusses the power in the formulation and interpretation of the WTO safeguards law. This chapter chooses two kinds of powers in the WTO safeguards law, namely, the right to formulate laws and the right to interpret laws, and discusses their respective power objectives, power subjects, ways of power exercise and the results of power exercise, and holds that these two powers represent the WTO safeguards measures respectively. The two value orientations of trade protection and sovereign interests are applied.
Chapter 3 is the discussion of the rights in the implementation of the WTO safeguard measures law.It chooses the three rights in the WTO safeguard measures law, namely, the right to implement safeguard measures, the right to suspend concessions and the right to express the will of the members, and discusses their respective subject of rights, the rules system or the way of exercising them respectively. The trade protection value orientation of the measure law, and the third represents the value orientation of sovereignty interest.
Chapter Four discusses the rights, power restriction and balance mechanism in the WTO safeguards law. First of all, this chapter discusses the mutual restriction between the two rights from the initiative of the safeguards implementation right and the backwardness of the suspension of concession right, and discusses the phase between the two rights from the link of the safeguards eligibility standard. The relationship of mutual balance is discussed in terms of the influence of the member's right to express his will on the two rights mentioned above; secondly, the chapter discusses the influence of the right to formulate and interpret the law on the implementation of the safeguard measures in the WTO safeguard measures law, and the result of the influence of the power on the right is that the legal rules of the WTO safeguard measures tend to be changed. Strictly speaking, from the perspective of the member's right to express his will to exert influence on the legislative power and the legal interpretation power, this paper discusses that the result of the influence of the right on the power is to make the legal rules of WTO safeguards easy to use for oneself, and summarizes the influence of the power and the right on the ease of using safeguards in the WTO safeguards law. Thirdly, this chapter discusses the checks and balances between the right to formulate WTO agreements and the right to interpret WTO disputes settlement bodies'laws in the WTO safeguards law from the perspective of power rank, operation effect and organization, and tries to predict the future development trend of WTO safeguards law.
The conclusion part is about the Enlightenment of the study on the rights and powers in the WTO safeguards law to the developing countries. According to the understanding of each power and right in the WTO safeguards law and the prospect of the development trend of the WTO safeguards law, this part puts forward how to grasp the opportunities in the practice of safeguards for the developing countries. Some suggestions.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D996.1
，
本文编号：2193127
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