反垄断指南的法律性质与司法适用
发布时间：2018-07-13 07:54
【摘要】：根据近日召开的中国竞争政策与法律年会,去年我国反垄断案件数量明显上升。《反垄断法》及其现有配套规定已不能适应反垄断实践的需要。我国《反垄断法》第九条规定,国务院反垄断委员会具有制定、发布反垄断指南的职责。指南仅是规范载体的形式。在我国的法律实践当中,指南不属于《立法法》规定的任何一种法律规范形式,也鲜少出现在我国法律规范当中。而《反垄断法》却没有明确反垄断指南的法律性质与运用。目前,《关于相关市场界定的指南》已经实施多年,另有《滥用知识产权反垄断指南》、《汽车业反垄断指南》等六部指南处于制定当中。因此,研究反垄断指南的法律性质与运用显得十分迫切和必要。研究反垄断指南的前提是,要对指南的正当性加以证成。一方面,《反垄断法》具有不确定性,这一性质至少具有经济、政策、法律三个方面的原因。另一方面,传统用于解决法律不确定性的法律解释方法对于某些原因导致的《反垄断法》不确定问题的解决难以胜任。因此,反垄断指南的存在具有内生的正当性。鉴于反垄断指南规制对象和规范内容的多样性和复杂性,有必要对指南从这两个层面加以类型化,从而对不同层面不同类型的指南内容进行定性和司法适用的分析。对反垄断指南法律性质的分析,应当从规范性文件包含的各个要素展开进行综合考量,包括形式要素和内容要素。对反垄断指南司法适用的研究,一方面,要考察我国现行有效的指南《有关市场界定的指南》的司法适用现状,并分析其进入司法的路径;另一方面,现实发生的、与反垄断相关的诉讼案件包括民事诉讼案件和行政诉讼案件,不同类型的指南及规范在不同类型的诉讼案件当中具有不同的效用和适用方式。值得注意的是,在市场主体因不服行政机关反垄断执法行为而提起的行政诉讼中,反垄断指南可能面临附带性司法审查。此外,《反垄断法》起草中引入反垄断指南的重要原因之一是,反垄断指南是国际反垄断执法领域通行的做法,因此,梳理、总结域外的经验对反垄断指南相关问题的研究大有裨益。比如,美国和欧盟的反垄断指南中的使用说明、美国司法中对于立法性规则、解释性规则和政策宣示的区分标准、欧盟和美国的司法机关对行政解释或行政决定的审查标准等。结合上述研究,反垄断指南从自我说明的角度仅对行政机关具有指导作用、对市场主体具有预判作用,从法律体系解释的角度其效力与竞争政策、评估报告等相当,从形式标准的角度也不具有法律法规规章的外形,但是从规范内容的角度却可能具有实际影响力。由此,反垄断指南可能在行政诉讼中被附带司法审查。若要改变反垄断指南中部分规范具有实际效力却在直接适用上存在障碍的境地,应当将这部分规范上升到立法层面,或者完善指南的制定程序。
[Abstract]:According to the recent annual meeting of China's competition policy and law, the number of antitrust cases in China increased significantly last year. The Anti-Monopoly Law and its existing supporting regulations can no longer meet the needs of antitrust practice. According to Article 9 of our country's Antimonopoly Law, the State Council Antimonopoly Commission has the duty to formulate and issue antitrust guidelines. The guide is only the form of a normative carrier. In the legal practice of our country, the guide does not belong to any of the forms of legal norms stipulated in the Legislative Law, and seldom appears in the legal norms of our country. However, the anti-monopoly law does not define the legal nature and application of anti-monopoly guidelines. At present, the guidelines on the definition of relevant markets have been implemented for many years, and there are also six guidelines, such as the Anti-monopoly Guide on the abuse of intellectual property Rights and the Anti-Monopoly Guide for the Automobile Industry, which are in the process of being formulated. Therefore, it is urgent and necessary to study the legal nature and application of anti-monopoly guide. The premise of studying antitrust guidelines is to justify them. On the one hand, the anti-monopoly law has uncertainty, which has at least three reasons: economy, policy and law. On the other hand, the traditional legal interpretation method used to solve the legal uncertainty is incompetent to solve the uncertainty of anti-monopoly law caused by some reasons. Therefore, the existence of antitrust guidelines has an endogenous legitimacy. In view of the diversity and complexity of the regulatory object and the normative content of antitrust guidelines, it is necessary to type the guidelines from these two levels, so as to analyze the qualitative and judicial application of different levels and different types of guidelines. The analysis of the legal nature of antitrust guidelines should be considered comprehensively from the elements contained in normative documents, including formal and content elements. For the study of judicial application of antitrust guide, on the one hand, it is necessary to investigate the current situation of judicial application in China's current effective guide, "Guide on Market definition", and to analyze the path of its entry into justice; on the other hand, what has happened in reality, Antitrust related litigation cases include civil litigation cases and administrative litigation cases. Different types of guidelines and norms have different utility and application in different types of litigation cases. It is worth noting that the antitrust guide may be subject to incidental judicial review in the administrative proceedings brought by the market subject for refusing to accept the antitrust law enforcement actions of the administrative organs. In addition, one of the important reasons for the introduction of anti-monopoly guidelines in the drafting of the Anti-Monopoly Law is that anti-monopoly guidelines are a common practice in the field of international anti-monopoly law enforcement. Summing up the experience abroad is of great benefit to the study of antitrust guidelines. For example, the use instructions in the antitrust guidelines of the United States and the European Union, the criteria for distinguishing between legislative rules, interpretative rules and policy declarations in the United States of America, and the standards for the examination of administrative interpretation or administrative decisions by the judicial organs of the EU and the United States. Combined with the above research, antitrust guidelines have only a guiding role to the administrative authorities from the perspective of self-explanation, and a pre-judgment role to the market subjects. From the perspective of the interpretation of the legal system, their effectiveness is comparable to that of competition policy, evaluation reports, and so on. The formal standard does not have the shape of laws and regulations, but it may have practical influence from the angle of normative content. As a result, antitrust guidelines may be subject to judicial review in administrative proceedings. If we want to change the situation that some of the antitrust guidelines have practical effect but have obstacles in their direct application, we should raise these norms to the level of legislation, or perfect the procedure of making the guidelines.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294
，
本文编号：2118699
[Abstract]:According to the recent annual meeting of China's competition policy and law, the number of antitrust cases in China increased significantly last year. The Anti-Monopoly Law and its existing supporting regulations can no longer meet the needs of antitrust practice. According to Article 9 of our country's Antimonopoly Law, the State Council Antimonopoly Commission has the duty to formulate and issue antitrust guidelines. The guide is only the form of a normative carrier. In the legal practice of our country, the guide does not belong to any of the forms of legal norms stipulated in the Legislative Law, and seldom appears in the legal norms of our country. However, the anti-monopoly law does not define the legal nature and application of anti-monopoly guidelines. At present, the guidelines on the definition of relevant markets have been implemented for many years, and there are also six guidelines, such as the Anti-monopoly Guide on the abuse of intellectual property Rights and the Anti-Monopoly Guide for the Automobile Industry, which are in the process of being formulated. Therefore, it is urgent and necessary to study the legal nature and application of anti-monopoly guide. The premise of studying antitrust guidelines is to justify them. On the one hand, the anti-monopoly law has uncertainty, which has at least three reasons: economy, policy and law. On the other hand, the traditional legal interpretation method used to solve the legal uncertainty is incompetent to solve the uncertainty of anti-monopoly law caused by some reasons. Therefore, the existence of antitrust guidelines has an endogenous legitimacy. In view of the diversity and complexity of the regulatory object and the normative content of antitrust guidelines, it is necessary to type the guidelines from these two levels, so as to analyze the qualitative and judicial application of different levels and different types of guidelines. The analysis of the legal nature of antitrust guidelines should be considered comprehensively from the elements contained in normative documents, including formal and content elements. For the study of judicial application of antitrust guide, on the one hand, it is necessary to investigate the current situation of judicial application in China's current effective guide, "Guide on Market definition", and to analyze the path of its entry into justice; on the other hand, what has happened in reality, Antitrust related litigation cases include civil litigation cases and administrative litigation cases. Different types of guidelines and norms have different utility and application in different types of litigation cases. It is worth noting that the antitrust guide may be subject to incidental judicial review in the administrative proceedings brought by the market subject for refusing to accept the antitrust law enforcement actions of the administrative organs. In addition, one of the important reasons for the introduction of anti-monopoly guidelines in the drafting of the Anti-Monopoly Law is that anti-monopoly guidelines are a common practice in the field of international anti-monopoly law enforcement. Summing up the experience abroad is of great benefit to the study of antitrust guidelines. For example, the use instructions in the antitrust guidelines of the United States and the European Union, the criteria for distinguishing between legislative rules, interpretative rules and policy declarations in the United States of America, and the standards for the examination of administrative interpretation or administrative decisions by the judicial organs of the EU and the United States. Combined with the above research, antitrust guidelines have only a guiding role to the administrative authorities from the perspective of self-explanation, and a pre-judgment role to the market subjects. From the perspective of the interpretation of the legal system, their effectiveness is comparable to that of competition policy, evaluation reports, and so on. The formal standard does not have the shape of laws and regulations, but it may have practical influence from the angle of normative content. As a result, antitrust guidelines may be subject to judicial review in administrative proceedings. If we want to change the situation that some of the antitrust guidelines have practical effect but have obstacles in their direct application, we should raise these norms to the level of legislation, or perfect the procedure of making the guidelines.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294
，
本文编号：2118699
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