我国反垄断法域外适用制度研究
发布时间：2018-11-02 21:07
【摘要】： 随着经济全球化、贸易与投资的自由化，市场已超越国内的空间向世界范围内扩展，跨国垄断行为对内国经济发展的影响日益突出，在国际反垄断法缺位的情况下，许多国家转而求助于本国的反垄断法的域外适用，以国内法律调整影响本国的国际垄断和限制竞争行为。随着我国经济实力的日益增强，随着我国正是成为世界贸易组织的一员，我国将更大规模和更加频繁地参加到国际经济贸易中去，国际市场的垄断行为对我国的市场的影响日益明显，为了维护我国的经济主权和经济利益，为了提高我国在反垄断法域外适用方面的国际合作能力，我国确立反垄断法域外适用不仅是必要的也是可行的。 我国规定反垄断法的域外适用既没有理论上的障碍，也是实践的需要。但我国反垄断法域外适用应遵循何种原则是其制度确立必须首先要解决的问题。通过对美国、欧盟等反垄断法域外适用原则的分析和借鉴，笔者认为我国的反垄断法域外适用制度应遵循“效果主义理论”。但在适用“效果原则”的过程中，必须对其进行必要的限制并使之具体明确，同时要充分利用效果加自然连接点，，尽量使之符合国际管辖权的有关规定。在立法上优化设计，使效果原则运用更具合理性。由于适用效果原则进行域外管辖，常常遇到抵制，因此，我国在遵循效果理论的前提下，应以合理管辖原则为指导，即在执行中注重“利益平衡原则”和“礼让原则”，从而尽量地缓和域外适用的矛盾和冲突。又由于境外限制竞争具有多种形式，为了更有效地进行域外管辖和使之更具有国际法依据，我国在域外管辖中应优先适用“单一经济体原则”和“履行地原则”。 在立法设计上，结合反垄断法域外适用的特点和其他国家的经验，笔者认为，我国应采用立法机关的概括性立法和执行机关的实施细则相结合的模式。 在我国反垄断法域外适用过程中，不可避免地在管辖权，证据的收集，判决的承认和执行等方面引起冲突，因此，我国应加强双边、区域和多边合作来协调反垄断法域外适用中的矛盾和冲突。在当前反垄断域外合作的多种主张中，我国可以接受WTO竞争规则的核心原则。
[Abstract]:With the globalization of economy and the liberalization of trade and investment, the market has expanded beyond the domestic space to the world, and the influence of transnational monopoly on the economic development of domestic countries has become more and more prominent. In the absence of international anti-monopoly law, the international anti-monopoly law is absent. Many countries turn to the extraterritorial application of their own antitrust laws and adjust their domestic laws to influence their international monopoly and restrict their competition behavior. With the increasing economic strength of our country and the fact that our country is a member of the World Trade Organization, China will participate in international economic trade on a larger scale and more frequently. The monopoly behavior of international market has more and more obvious influence on our country's market. In order to safeguard our country's economic sovereignty and benefit, to improve our country's ability of international cooperation in the extraterritorial application of anti-monopoly law, It is not only necessary but also feasible to establish the extraterritorial application of anti-monopoly law in China. There are no theoretical obstacles to the extraterritorial application of anti-monopoly law in our country, and it is also the need of practice. However, what principles should be followed in the extraterritorial application of antimonopoly law is the first problem to be solved in the establishment of its system. Based on the analysis and reference of the principles of extraterritorial application of anti-monopoly laws such as the United States and the European Union, the author holds that the extraterritorial application system of anti-monopoly law in China should follow the "theory of effectivism". However, in the process of applying the "effect principle", it is necessary to restrict it and make it specific, at the same time, we must make full use of the effect and natural connection point to make it conform to the relevant provisions of international jurisdiction as far as possible. Optimize the design in the legislation, make the effect principle use more reasonable. Due to the extraterritorial jurisdiction of the principle of application of effect, it is often met with resistance. Therefore, under the premise of following the theory of effect, our country should be guided by the principle of reasonable jurisdiction, that is, we should pay attention to the principle of balance of interests and the principle of comity in the implementation of the principle. Thus as far as possible to ease the extraterritorial application of contradictions and conflicts. In order to carry out extraterritorial jurisdiction more effectively and to make it have more international legal basis, China should give priority to the application of "single economy principle" and "place of performance principle" in extraterritorial jurisdiction. In the legislative design, combined with the characteristics of the extraterritorial application of anti-monopoly law and the experience of other countries, the author believes that our country should adopt the model of combining the general legislation of the legislative organ with the implementing rules of the executive organ. In the process of extraterritorial application of anti-monopoly law in China, conflicts inevitably arise in the aspects of jurisdiction, collection of evidence, recognition and enforcement of judgments, etc. Therefore, our country should strengthen bilateral, Regional and multilateral cooperation to coordinate the extraterritorial application of anti-monopoly law contradictions and conflicts. In the current anti-monopoly foreign cooperation, China can accept the core principle of WTO competition rules.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.294
本文编号：2306947
[Abstract]:With the globalization of economy and the liberalization of trade and investment, the market has expanded beyond the domestic space to the world, and the influence of transnational monopoly on the economic development of domestic countries has become more and more prominent. In the absence of international anti-monopoly law, the international anti-monopoly law is absent. Many countries turn to the extraterritorial application of their own antitrust laws and adjust their domestic laws to influence their international monopoly and restrict their competition behavior. With the increasing economic strength of our country and the fact that our country is a member of the World Trade Organization, China will participate in international economic trade on a larger scale and more frequently. The monopoly behavior of international market has more and more obvious influence on our country's market. In order to safeguard our country's economic sovereignty and benefit, to improve our country's ability of international cooperation in the extraterritorial application of anti-monopoly law, It is not only necessary but also feasible to establish the extraterritorial application of anti-monopoly law in China. There are no theoretical obstacles to the extraterritorial application of anti-monopoly law in our country, and it is also the need of practice. However, what principles should be followed in the extraterritorial application of antimonopoly law is the first problem to be solved in the establishment of its system. Based on the analysis and reference of the principles of extraterritorial application of anti-monopoly laws such as the United States and the European Union, the author holds that the extraterritorial application system of anti-monopoly law in China should follow the "theory of effectivism". However, in the process of applying the "effect principle", it is necessary to restrict it and make it specific, at the same time, we must make full use of the effect and natural connection point to make it conform to the relevant provisions of international jurisdiction as far as possible. Optimize the design in the legislation, make the effect principle use more reasonable. Due to the extraterritorial jurisdiction of the principle of application of effect, it is often met with resistance. Therefore, under the premise of following the theory of effect, our country should be guided by the principle of reasonable jurisdiction, that is, we should pay attention to the principle of balance of interests and the principle of comity in the implementation of the principle. Thus as far as possible to ease the extraterritorial application of contradictions and conflicts. In order to carry out extraterritorial jurisdiction more effectively and to make it have more international legal basis, China should give priority to the application of "single economy principle" and "place of performance principle" in extraterritorial jurisdiction. In the legislative design, combined with the characteristics of the extraterritorial application of anti-monopoly law and the experience of other countries, the author believes that our country should adopt the model of combining the general legislation of the legislative organ with the implementing rules of the executive organ. In the process of extraterritorial application of anti-monopoly law in China, conflicts inevitably arise in the aspects of jurisdiction, collection of evidence, recognition and enforcement of judgments, etc. Therefore, our country should strengthen bilateral, Regional and multilateral cooperation to coordinate the extraterritorial application of anti-monopoly law contradictions and conflicts. In the current anti-monopoly foreign cooperation, China can accept the core principle of WTO competition rules.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.294
【引证文献】
相关硕士学位论文 前2条
1 刘晔婧;论反垄断法的域外适用[D];黑龙江大学;2011年
2 鹿欣;反垄断法域外适用问题研究[D];中国政法大学;2010年
本文编号：2306947
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