反垄断法宽恕制度中的证据问题研究
发布时间：2019-01-27 16:17
【摘要】：横向垄断协议本身具有联合性与稳定性等特点,它会给市场竞争以及消费者权益带来损害,因此,世界各国都做出了严格的处罚规定。为了避免这种处罚,经营者往往会采取高隐蔽性的方式逃避执法机构的调查与处罚,这使得对垄断协议的查处困难。在实际执法过程中,能够对垄断协议违法性直接认定的往往是书面价格协议等证据,而对于这类证据取证最为困难。与自行调查获取证据相比,经营者的主动告发往往可以使执法机构获得更多更有效的直接证据。不明确的证据规定会使申请者对其是否能够符合豁免标准产生疑惑,不敢主动提出申请,阻断宽恕制度实施的有效性;而细化的证据规定,对于诱惑申请者主动提交证据证明其所参与的垄断协议具有违法性,从而降低执法机构调查取证的成本。在宽恕制度的证据相关规定中,根据不同的情形可以分为不同的内容。申请者提交证据的时间在公司宽恕与个人宽恕制度中有所不同;对于启动调查前与启动调查后、免除责任与减轻责任、以及在申请者申请标记时,应予提供的证据的质量标准不相同。对于证据质量的规定足够明确的国家,对后续合作义务只进行必要性的规定即可,而对于证据质量规定不够明确的国家,相对而言会更加注重后续合作义务的价值,证据质量与合作义务二者紧密联系,可以将两部分看作是申请者申请宽恕的整体过程,不论是提交证据,抑或是积极合作,都以认定并查处垄断协议违法性为最终目的,并根据这一目的是否达成作为判断申请者能否获得宽恕的最终标准。此外,由于反垄断法中的民事损害赔偿无法适用宽恕制度得到豁免,故而民事责任的承担会给宽恕申请者带来一系列顾虑,最直接的就是关于宽恕制度实施过程中的一系列证据材料能否在后继民事赔偿诉讼中使用的问题,如果没有明确合理的证据使用规则,就无法兼顾反垄断宽恕制度的有效实施与民事赔偿价值的发挥,因此应当明确完善宽恕申请者提供证据材料的保密规则以及宽恕制度实施中产生的裁决文件在民事赔偿诉讼中的使用规则。美国、欧盟立法对于宽恕制度中的证据相关规定经历了从标准不清晰到渐渐清晰的立法变化,逐步符合实践中执法机构查处垄断协议案件的需要。在我国,《中华人民共和国反垄断法》及一系列部门规章中也规定了宽恕制度的有关内容,但是这些文件中的证据规定表述过于原则化,不具有明确性,法律效力层级低,不具有普遍适用效力。与域外发达国家的成熟立法相比,我国立法只处于起步阶段,尚未形成系统完善的宽恕制度体系。从我国近几年的一系列横向垄断协议案件中可以看出,立法的缺陷给实践带来不便,因此亟待完善。应当结合我国实际情况,根据不同情形对证据标准作相应的区别规定,明确申请者提交证据的类型以及证据的提交方式以及申请者的合作义务,并规定民事损害赔偿诉讼中的证据使用规则。只有完善的立法,才能使宽恕制度的价值得以实现。
[Abstract]:The lateral monopoly agreement itself has the characteristics of joint property and stability, which can cause damage to the market competition and the consumer's rights and interests. Therefore, all the countries of the world have made strict punishment regulations. In order to avoid such punishment, the operator often takes a high concealment to avoid the investigation and punishment of the law enforcement agencies, which makes it difficult to deal with the monopoly agreement. In the course of the actual law enforcement, it is possible to directly determine the illegal nature of the monopoly agreement, often in the form of a written price agreement and so on, and it is the most difficult to obtain evidence for this kind of evidence. in contrast to that evidence obtained by the self-investigation, the operator's initiative tends to enable law enforcement agencies to obtain more and more effective direct evidence. Indefinite evidence provides that the applicant has doubts about the ability of the applicant to meet the criteria for exemption, does not dare to make an active application, and blocks the validity of the implementation of the pardon system; and the detailed evidence provides that, In order to lead the applicant to submit the evidence to prove that the monopoly agreement involved is illegal, the cost of investigation and evidence collection by the law enforcement agency is reduced. In the evidence-related provisions of the forgiveness system, different situations can be divided into different contents. The time for the applicant to submit evidence is different in the company's forgiveness and the system of personal forgiveness; the quality of the evidence to be provided should not be the same for the initiation of the investigation and after the initiation of the investigation, the liability and the liability, and the quality of the evidence that should be provided when the applicant applies for the marking. For countries where the quality of the evidence is sufficiently clear, the need for follow-up obligations is only required, and in countries where the quality of the evidence is not sufficiently clear, the value of the subsequent cooperation obligations, the quality of evidence and the obligation of cooperation are more closely linked, The two parts can be regarded as the whole process of the applicant's application for forgiveness, whether the evidence is submitted, or active cooperation, to identify and investigate the illegality of the monopoly agreement as the final purpose, and whether to reach the final standard as a judge whether the applicant can obtain the forgiveness. In addition, because the civil damages in the anti-monopoly law are not applicable to the exemption from the application of the forgiveness system, the liability of the civil liability will bring a series of concerns to the forgiveness applicant, The most direct question is whether a series of evidence materials in the implementation of the pardon system can be used in the subsequent civil compensation litigation, and if there is no clear and reasonable use of the rule, the effective implementation of the anti-monopoly pardon system and the play of the civil compensation value cannot be taken into account. Therefore, it is necessary to clearly improve the rules of application of the confidentiality rules and the application rules of the award documents generated in the implementation of the forgiveness system. In the United States, the relevant provisions of the EU legislation on the evidence in the forgiveness system have gone through the legislative changes that are not clear from the standard to the gradual and clear, and gradually meet the need of the law enforcement agencies in the practice to deal with the case of the monopoly agreement. In our country, the anti-monopoly law of the People's Republic of China and a series of department rules also stipulate the relevant contents of the forgiveness system, but the evidence in these documents is too principles, it is not clear, the legal effect level is low, and it is not universally applicable. Compared with the mature legislation of the developed countries, the legislation of our country is only at the beginning stage, and the system of the system of forgiveness is not formed. It can be seen from a series of transverse monopoly agreements in recent years that the defects of the legislation are inconvenient to practice and need to be perfected. In the light of the actual situation of our country, according to the different circumstances, the evidence standard should be provided with the corresponding difference, the type of the evidence to be submitted to the applicant and the way of the submission of the evidence and the cooperation obligation of the applicant, and the rules for the use of the evidence in the civil damages lawsuit. Only perfect legislation can make the value of the system of forgiveness be realized.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294
本文编号：2416437
[Abstract]:The lateral monopoly agreement itself has the characteristics of joint property and stability, which can cause damage to the market competition and the consumer's rights and interests. Therefore, all the countries of the world have made strict punishment regulations. In order to avoid such punishment, the operator often takes a high concealment to avoid the investigation and punishment of the law enforcement agencies, which makes it difficult to deal with the monopoly agreement. In the course of the actual law enforcement, it is possible to directly determine the illegal nature of the monopoly agreement, often in the form of a written price agreement and so on, and it is the most difficult to obtain evidence for this kind of evidence. in contrast to that evidence obtained by the self-investigation, the operator's initiative tends to enable law enforcement agencies to obtain more and more effective direct evidence. Indefinite evidence provides that the applicant has doubts about the ability of the applicant to meet the criteria for exemption, does not dare to make an active application, and blocks the validity of the implementation of the pardon system; and the detailed evidence provides that, In order to lead the applicant to submit the evidence to prove that the monopoly agreement involved is illegal, the cost of investigation and evidence collection by the law enforcement agency is reduced. In the evidence-related provisions of the forgiveness system, different situations can be divided into different contents. The time for the applicant to submit evidence is different in the company's forgiveness and the system of personal forgiveness; the quality of the evidence to be provided should not be the same for the initiation of the investigation and after the initiation of the investigation, the liability and the liability, and the quality of the evidence that should be provided when the applicant applies for the marking. For countries where the quality of the evidence is sufficiently clear, the need for follow-up obligations is only required, and in countries where the quality of the evidence is not sufficiently clear, the value of the subsequent cooperation obligations, the quality of evidence and the obligation of cooperation are more closely linked, The two parts can be regarded as the whole process of the applicant's application for forgiveness, whether the evidence is submitted, or active cooperation, to identify and investigate the illegality of the monopoly agreement as the final purpose, and whether to reach the final standard as a judge whether the applicant can obtain the forgiveness. In addition, because the civil damages in the anti-monopoly law are not applicable to the exemption from the application of the forgiveness system, the liability of the civil liability will bring a series of concerns to the forgiveness applicant, The most direct question is whether a series of evidence materials in the implementation of the pardon system can be used in the subsequent civil compensation litigation, and if there is no clear and reasonable use of the rule, the effective implementation of the anti-monopoly pardon system and the play of the civil compensation value cannot be taken into account. Therefore, it is necessary to clearly improve the rules of application of the confidentiality rules and the application rules of the award documents generated in the implementation of the forgiveness system. In the United States, the relevant provisions of the EU legislation on the evidence in the forgiveness system have gone through the legislative changes that are not clear from the standard to the gradual and clear, and gradually meet the need of the law enforcement agencies in the practice to deal with the case of the monopoly agreement. In our country, the anti-monopoly law of the People's Republic of China and a series of department rules also stipulate the relevant contents of the forgiveness system, but the evidence in these documents is too principles, it is not clear, the legal effect level is low, and it is not universally applicable. Compared with the mature legislation of the developed countries, the legislation of our country is only at the beginning stage, and the system of the system of forgiveness is not formed. It can be seen from a series of transverse monopoly agreements in recent years that the defects of the legislation are inconvenient to practice and need to be perfected. In the light of the actual situation of our country, according to the different circumstances, the evidence standard should be provided with the corresponding difference, the type of the evidence to be submitted to the applicant and the way of the submission of the evidence and the cooperation obligation of the applicant, and the rules for the use of the evidence in the civil damages lawsuit. Only perfect legislation can make the value of the system of forgiveness be realized.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294
【参考文献】
相关期刊论文 前10条
1 綦书纬;;完善我国《反垄断法》宽大制度的研究——兼就《横向垄断协议案件宽大制度适用指南(征求意见稿)》提出几点建议[J];价格理论与实践;2016年03期
2 ;卡特尔与滥用市场支配地位规制的发展趋势[J];竞争政策研究;2016年01期
3 张晓云;;反垄断宽恕制度中执法机关裁量权的规制[J];价格理论与实践;2015年11期
4 褚清瑶;;日本反垄断宽大制度探究[J];吉林广播电视大学学报;2015年09期
5 卢延纯;王洋林;;汽车销售及售后领域价格垄断行为的认定——某汽车厂商及经销商价格垄断案评析[J];中国价格监管与反垄断;2015年07期
6 许光耀;;反垄断法上的卡特尔宽大制度[J];政法论丛;2015年03期
7 洪莹莹;;反垄断法宽恕制度的中国实践及理论反思[J];政治与法律;2015年05期
8 张正明;薛强;唐可昕;;反价格垄断宽大制度研究[J];价格理论与实践;2014年08期
9 戴龙;张天琪;;论我国《反垄断法》宽大制度的完善[J];价格理论与实践;2014年04期
10 杨东;;我国反垄断法实施以来垄断协议规制情况分析[J];中国物价;2013年10期
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