市场规制法的法理基础

发布时间：2018-08-19 19:07

【摘要】：本文运用经济学和法学的相关原理揭示了市场规制的本质属性及其基本内涵，同时宏观考察了市场规制立法及其相应理论问题的发展历史，认为市场规制问题是随着现代意义上的市场经济的出现及其深度发展而来的，市场主体的个人逐利与社会公共利益的矛盾性决定了市场规制的必要性，市场竞争决定了市场规制以救济市场失灵为临界以及充分尊重市场机制的运行为前提。因此，对市场规制作为救济市场经济固有失灵性的必要手段，相对于自由竞争这一市场经济的本位属性而言，市场规制不能不处于非本位的补充性地位。市场经济是法治经济，市场规制作为市场经济的一种外在补充手段，其对于法治的需求和依赖自是顺理成章。市场机制的运行，同样既需要有相应的私法(民商法)来规范各种市场行为，也需要有相应的公法(行政法)来规范各种政府经济行为。但传统私法不能弥补市场缺陷的需求，传统公法也不能满足弥补政府缺陷的需求，所以，市场缺陷和政府缺陷的弥补，不仅需要私法公法化和公法私法化，而且还需要兼容公法与私法、由经济法和社会法所构成的第三领域。于是市场规制法也就应运而生了。一类新型的法律部门的产生，除了其外部原因外，，还有法发展的内在规律起作用：民商法、行政法由于自身的局限导致了社会关系调节上的法律缺位，市场规制法才有可能作为弥补法律空缺的新形态产生，如果民商法、行政法通过自身的演变能解决市场失灵等诸多问题，市场规制法就没有产生的独立价值，其也就实实在在成为一门“剩余学科”。民商法承担了培育和发展市场经济的历史职责：维护私权、自由契约、鼓励竞争。因而，民商法已深深“嵌入”市场经济的肌体之中，当市场失灵时，秩序的混乱实际上是验证了法律规则的失灵。为此，民商法运行了一定程度的自我修复机制，通过“外接”模式作为通过其它法律领域的切入点，如通过民商法的社会化、民商关系与公权力的接轨等设计，试图在一定程度上缓解多元化利益冲突下私法的局限性，保持与整个社会体制的顺畅运作。但其以个体为本位的天然本质，决定了其在协调个体之外的因素时具有不可克服的功能性局限。传统行政法关注的是“政府失灵”问题，控权、限权构成了行政法的主旨。为适应政府职能的转变，行政法顺应时势，及时修复，日渐将研究视野拓展至公共领域、市场管理、行政契约、利益集团乃至民间组织，由此所带来的法律变化称为“行政法社会化”。但以政府为本位，以行政权力行使为主旨的行政法，如同民商法逾越不了市场经济一样，始终因其内在品质和结构限定了其边界，既离不开行政权力这一中心和主轴，也改变不了其“公法”的内在品性。民商法、行政法各自的局限性为创设新的法律规则，提供了契机，这就是市场规制体系的形成与发展。当然，研究中国的市场规制问题，不能不借鉴成功市场经济国家的经验。本文借用诺思的“路径依赖”理论，根据不同国家现代化道路的不同将世界主要市场经济国家分为内、外源式两类。由于各自现代化道路具体“路径”的不同，其市场规制的发展历程也各异。在内源式模式下，市场规制是经济自由发展的结果，而在外源式模式下，市场规制则一般是政府推进的产物。因此，在普遍尊重市场经济总体规律及其共性要求的前提下，不同国家在解决各自的市场规制问题及其进行相应法制构建时，具体做法是不同的。内源式现代化国家市场规制所面临的主要问题一般是“经济性”垄断、限制竞争行为等作为自由经济“自然”发展结果的“伴生性”经济问题。因此，其相应规制立法也往往是在充分尊重作为市场经济基础法律要素—各私法要素的前提下进行的，通常表现为一种“补充性” —补充原有以私法为主体的法律体系的欠缺功能的能动规范。而外源式现代化国家市场规制面临的焦点问题往往并非内源式现代化国家那种所谓经济自然发展伴生现象的“纯经济性”问题，而主要是克服原来过于强大、过于膨胀的公共权力对社会经济生活的过度管制、干预及随体制转轨而来的各种伴生现象问题，同时合理界定公共权力在市场规制问题上的作用空间和范围，谨慎防范因原来公共权力系统和公共权力理念过于发达所可能导致的过度的“政府失灵”问题。我国作为一个后起的外源式现代化国家，与西方发达市场经济国家的情况相反，我国目前市场规制方面存在的主要问题，不是西方国家伴随市场高度成熟而带来的“市场失灵”，而是市场发育不充分、市场机制不健全，即所谓“市场不够”，主要根源是以行政权力为主导的作为原有体制遗留问题的公共权力对市场的过度限制，以权力限制、排斥甚至替代竞争，从而抑制、阻止市场机制正常发挥作用。因此，我国对于市场规制立法问题的解决，既要充分汲取其他现代化国家市场经济建设的相关成功经验，又不能完全遵循和照搬西方发达市场经济国家的一般做法，而必须充分考虑我国自身面临的特殊背景，要特别注意防止利用强势的公权力对市场的过度干预，妨碍市场机制作用的正常发挥，尽快完善市场规制立法，以促进经济和社会的良性运行和协调发展。
[Abstract]:Using the relevant principles of economics and jurisprudence, this article reveals the essential attribute of market regulation and its basic nature.
At the same time, the development history of the legislation of market regulation and its corresponding theoretical problems is macroscopically investigated, and the market regulation is considered.
The problem is that with the emergence of the modern sense of the market economy and its depth of development, the market subject of the individual
The contradiction between profit-seeking and social public interests determines the necessity of market regulation, and market competition determines market regulation.
The precondition of regulation is to relieve market failure and fully respect the operation of market mechanism.
Making is a necessary means to remedy the inherent failure of market economy, as opposed to free competition, the essence of market economy.
In terms of attribute, market regulation can not be placed in a non standard supplementary position. Market economy is a rule of law economy.
Market regulation, as an external supplementary means of market economy, is justified in its need for and dependence on the rule of law.
The operation of market mechanism also requires the corresponding private law (Civil and Commercial Law) to regulate various market operations.
In order to regulate all kinds of government economic behavior, the traditional private law can not be regulated.
The traditional public law can not meet the needs of the government to make up for the market deficiency. Therefore, the market lacks.
To make up for the defects of the government, we need not only to make private law public and public law private, but also to be compatible with public law.
Private law is the third field consisting of economic law and social law.
The emergence of a new type of legal department, apart from its external causes, also has the inherent law of the development of law.
Role: Civil and commercial law, administrative law due to its own limitations led to the regulation of social relations in the absence of law, Market
Regulation law can be produced as a new form to make up for the legal vacancy. If civil and commercial law, administrative law passes itself.
Evolution can solve many problems, such as market failure. Market regulation law has no independent value, and so on.
In fact, it has become a "residual discipline". Civil and commercial law has undertaken the historical responsibility of cultivating and developing market economy.
Safeguarding private rights, free contracts and encouraging competition, so civil and commercial law has been deeply embedded in the body of market economy.
In fact, when the market fails, the disorder of order is actually verifying the failure of legal rules.
Law operates a certain degree of self-repairing mechanism through the "external" model as through other areas of law.
Pointcuts, such as the socialization of civil and commercial law, the integration of civil and commercial relations and public power, are designed to be certain.
To a certain extent, it can alleviate the limitations of private law under the conflict of interests and maintain smooth operation with the whole social system.
But its individual-based nature determines that it is insurmountable in coordinating factors outside the individual.
The traditional administrative law is concerned with the problem of "government failure", and power control and power restriction constitute the administration.
In order to adapt to the transformation of government functions, the administrative law is becoming more and more important.
Wilderness extends to public domain, market management, administrative contract, interest groups and even non-governmental organizations.
The change of law is called "the socialization of administrative law", but the government-oriented and the exercise of administrative power as the main purpose
Politics and law, just as civil and commercial law can not go beyond the market economy, have always been limited by its inherent quality and structure.
The boundary can not be separated from the center and main axis of administrative power, nor can it change the internal quality of its "public law".
The limitations of commercial law and administrative law provide an opportunity for the creation of new legal rules, which is market regulation.
The formation and development of the system.
Of course, the study of China's market regulation can not fail to learn from the experience of successful market economy countries.
Based on North's theory of "path dependence", this paper tries to find out the major cities in the world according to the different modernization paths of different countries.
The field economic countries are divided into two categories: internal and external.
The development process of market regulation is also different. Under the endogenous mode, market regulation is the result of free economic development.
In the exogenous mode, market regulation is generally the product of the government's promotion. Therefore, the market is universally respected.
On the premise of the general economic law and its common requirements, different countries are solving their own market regulation problems
The concrete measures are different when the corresponding legal system is constructed. the market regulation of the endogenous modernized country is faced with
The main problems are generally "economic" monopoly, restriction of competitive behavior as a free economy "natural" development knot.
Consequently, the corresponding regulatory legislation is often fully respecting the market as a market.
The basic elements of economic law, which are based on the elements of private law, usually appear as a kind of "complementarity".
- to supplement the active norms of the original legal system with private law as the main body.
The focus of national market regulation is often not the so-called natural economic development of the endogenous modernized countries.
The problem of "pure economy" accompanied by phenomena is mainly to overcome the over-powerful and over-inflated public rights.
The problems of excessive regulation of social and economic life, intervention and various concomitant phenomena arising from the transformation of the system are the same.
Reasonably define the role of public power in the market regulation issues and scope, cautious precautions against the original public
The excessive "government failure" problem caused by the excessive development of the power system and the concept of public power.
As a backward and modernized country, China is confronted with the western developed market economy countries.
On the contrary, the main problem of market regulation in China is not that the western countries are accompanied by highly mature markets.
The "market failure" brought about is the insufficient development of the market and the imperfect market mechanism, that is, the so-called "insufficient market".
The main reason is the excessive influence of public power on the market as a legacy of the original system, which is dominated by administrative power.
Restriction, restriction of power, exclusion or even substitution of competition, inhibit and prevent market mechanism from functioning normally.
Therefore, in order to solve the problem of market regulation legislation in China, we should draw on the market experience of other modern countries.
Successful experience in economic construction can not be fully followed and copied from the general practice of the developed market economy countries in the West.
The law, however, must fully consider the special background that our country is facing and pay special attention to preventing the use of powerful public power.
The excessive intervention of force on the market will impede the normal exertion of the role of the market mechanism and improve the legislation of market regulation as soon as possible.
In order to promote the benign operation and coordinated development of the economy and society.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D922.29

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