WTO授权贸易报复的请求问题探究——以紧固件案执行争端解决为视角

发布时间：2019-01-26 08:36

【摘要】：中国加入WTO近十五年,首次启动有关遵守争端解决裁决的程序,提起欧盟对华紧固件反倾销案的执行复审,最终取得WTO争端机构的全部支持,体现了WTO体制的规则导向。在欧盟撤销涉案反倾销措施的情况下,中国通过全面评估其执行情况,如有异议,可任择请求授权贸易报复。WTO成立二十多年以来,请求授权贸易报复的诸多案例表明请求方的权利得到充分的保障。即便被诉方辩称已撤销违约措施,请求方表示异议,仍可行使其权利。对有关请求授权贸易报复的条约解释与判理的探究,证明授权贸易报复是被诉方没有完全执行WTO争端解决的裁决所应承担的违约代价,而请求权的行使只要符合正当程序,无一例外可得到WTO争端解决机构的支持。授权贸易报复的起算日是被诉方应执行裁决的合理期限结束之日,故并非一概既往不咎。国内学界有关WTO争端解决既往不咎的价值导向理论既不完全符合实际,也与国际学界的权威学说不尽一致。在澄清对于请求授权贸易报复的实践与理论的某些误解的同时,中国政府应总结紧固件案执行争端解决的经验教训,今后应未雨绸缪,及早准备请求授权贸易报复,切实维护国家、企业的合法权益。
[Abstract]:In the past 15 years after China joined the WTO, the procedure of complying with the dispute settlement ruling was initiated for the first time, and the enforcement review of the European Union's anti-dumping case against China was initiated, which finally obtained the full support of the WTO dispute body, which reflected the rule-orientation of the WTO system. Under the circumstances of the EU withdrawing the anti-dumping measures involved in the case, China has made a comprehensive assessment of its implementation and, if there is any objection, can optionally request authorization of trade retaliation. More than 20 years after the establishment of the WTO, Many cases of trade retaliation by requesting authorization show that the rights of the requesting party are fully protected. Even if the defendant argues that the breach has been revoked, the requesting party may exercise its rights if it objects. The inquiry into the treaty interpretation and judgment of requesting authorized trade retaliation proves that authorized trade retaliation is the default price that the litigant does not fully implement the ruling of WTO dispute settlement, and the exercise of the claim right is only in accordance with due process. Without exception, it can be supported by the WTO dispute settlement body. The starting date of authorized trade retaliation is the end of a reasonable period of time for the defendant to enforce the award. The value-oriented theory of WTO dispute settlement is not entirely in line with the reality and inconsistent with the authoritative theory of the international academic field. While clarifying certain misunderstandings about the practice and theory of requesting authorization of trade retaliation, the Chinese Government should sum up the experience and lessons of the implementation of dispute settlement in the Fastener case, and in the future should make good preparations for requesting authorization of trade retaliation as early as possible. Safeguard the legitimate rights and interests of the state and enterprises.
【作者单位】：复旦大学法学院;
【分类号】：D996.1

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