论反垄断法民事救济制度
发布时间：2019-03-25 11:03
【摘要】：反垄断法的救济问题,在反垄断法域中向来是比较受重视的一个领域。其中民事救济是整个救济体系中非常重要的一个组成部分。然而中国《反垄断法》仅在第50条对垄断行为应承担的民事责任作了原则性的规定。这一诉权宣示如何转化成现实的民事诉讼,如何服务于反垄断法立法目的的实现,需要在哪些方面完善配套制度?这些都是中国反垄断法民事救济制度建设必须要回答和研究的问题。 笔者期望通过对反垄断法民事救济制度设计过程中的指导思想和具体配套制度的辩证性分析和系统化研究,指明我国反垄断法民事救济制度需要完善的方向,为立法者提供可行性和建设性意见。 本文从五个方面对反垄断民事救济制度展开论述,内容提要如下： 第一个方面是对反垄断法民事救济的界定,这也是本文研究的背景视野。反垄断法民事救济在本文中特指受害者针对垄断行为提起的民事诉讼活动,分析了反垄断法民事救济与反垄断法私人执行的关系,指出反垄断民事救济具有的双重功能,即给受害者提供补偿和协助执法,揭示出反垄断法民事救济制度背后深刻的制度价值。 第二个方面从必要性和合法性两个角度分析了反垄断法民事救济制度的法理基础。任何法律制度的出台,都是伴随着社会形态的发展变化和时代进步的需求应运而生的,反垄断法民事救济制度同样如此。域外的反垄断实践一再证实,仅靠公共执法,反垄断法的落实程度是非常有限的；而吸收私人的力量,动员他们与垄断违法行为作斗争,则能带来很多公共执法所不具备的优势,私人诉讼能很好起到执行反垄断法、实现反垄断法立法目的的作用。民商法的“、平等、公平诚实信用”的法律原则反映到市场竞争领域,表现为对市场主体公平竞争权利和合法经济利益的保护。然而,现实生活中,垄断和限制竞争的行为,不仅会损害其他经营者和消费者的利益,还会损害正常的市场竞争过程和竞争秩序,消费者的选择自由受到干涉,真实需求信号无法准确传递,从而造成资源的错误配置和消费者福利的减损。面对竞争秩序的维护单纯依靠民商法是很难完成的,必须由经济法领域中的市场规制法进行补充和矫正,使得发生扭曲的市场状态恢复到正常的状态。而经济法协调个体营利性和社会公益性之间矛盾的宗旨和价值追求,表明其完全支持反垄断中的民事救济。因此,民商法和经济法的规定共同奠定了反垄断法民事救济制度的合法性基础。 第三个方面选取了美国、欧盟、英国和德国的反垄断民事救济制度作为域外考证,以期能够对我国的相关研究提供参考和借鉴。从私人救济到私人执行,这是民事诉讼在反垄断法领域内的一次重大的角色定位的转换,这种转换日益成为一股强劲的世界潮流。为了适应这种对私人诉讼的新的角色定位,相关国家的反垄断法在救济制度的设计方面,也作出了专门的规定,以期积极鼓励私人提起诉讼,更好的阻止违法行为的发生。这些在反垄断法领域比较发达的国家关于一系列具体制度的专门规定无疑对我国反垄断法民事救济制度的设计和构建起到了很好的模范作用,值得参考和借鉴。 第四个方面通过分析我国反垄断法民事救济法律依据的原则性特点,认为我国《反垄断法》第50条对垄断行为应承担的民事责任仅作了原则性规定,对于民事责任的内容未作任何细节规定,关于私人诉讼的程序制度也未作任何特殊规定,这就导致了在实际执行过程中缺乏可操作性。此外,我国反垄断民事救济主要体现在反垄断案件的处理上,而反垄断法案件是一类非常特殊的案件,具有高度技术化、专业化、复杂化的特点,这就为反垄断的私人执行带来了诸多困难,进而阻碍了我国反垄断法民事救济的开展。 第五个方面是本文的最终落脚点,是全文最重要的部分,笔者对如何构建我国反垄断法民事救济制度进行了有益地思考和探索,详细论述了制度设计的指导思想、需要完善的方向和具体的制度安排。使受害者没有勇气或者没有能力提起诉讼的私人民事救济制度形同虚设,是不可取的。为此必须简化诉讼程序,优化制度构建,制度设计中应当提供足够的激励,清除私人诉讼过程中的障碍,尤其是在救济方式、起诉、管辖、证明、诉讼费用、群体性诉讼等方面给予私人诉讼提供便利条件,有效发挥私人诉讼的执法功能和救济功能。 笔者通过对上述问题进行辩证性分析和系统化研究,旨在期望为相关立法者提供可行性和建设性意见,推动我国反垄断法民事救济制度的完善
[Abstract]:The relief of anti-monopoly law has always been a field in the domain of anti-monopoly law. Civil relief is an important part of the whole relief system. However, China's anti-monopoly law has made the principle of the civil liability for monopoly conduct only in Article 50. How to turn into a real civil action, how to serve the realization of the anti-monopoly law legislative purpose, and what to perfect the supporting system? These are the questions that must be answered and studied in the construction of the civil remedy system in China's anti-monopoly law. The author expects that through the dialectical analysis and systematic study of the guiding ideology and the specific supporting system in the design of the civil remedy system of the anti-monopoly law, the author points out that the civil remedy system of the anti-monopoly law in China needs to be improved, so as to provide the legislators with the feasibility and the constructive meaning. See, the article discusses the anti-monopoly civil relief system from five aspects, the content of the content The first aspect is the definition of the civil remedy of the anti-monopoly law, which is also studied in this paper. In this paper, the civil relief of the anti-monopoly law refers to the civil action of the victim to the monopolistic act, analyzes the relationship between the civil remedy of the anti-monopoly law and the private execution of the anti-monopoly law, points out the dual function of the anti-monopoly civil remedy, that is, the compensation for the victim and to assist the law enforcement and reveal the deep behind the civil remedy system of the anti-monopoly law The second aspect analyses the civil remedies of the anti-monopoly law from the perspective of necessity and legitimacy The legal basis of the system is the introduction of any legal system, which is accompanied by the development of the social form and the demand of the progress of the times, and the civil service of the anti-monopoly law The same applies to the economic system. The extraterritorial anti-monopoly practice has repeatedly confirmed that the degree of implementation of the anti-monopoly law is very limited only by public law enforcement. The non-existent advantage is that the private litigation can play an important role in the implementation of the anti-monopoly law and realize the anti-monopoly law The function of the legislative purpose. The legal principle of the ", equality, fairness and good faith" of the civil and commercial law is reflected in the market competition, and is expressed as the right and the legal right to the fair competition of the market. The protection of economic benefits. However, in the real life, the behavior of monopolizing and limiting the competition not only damages the interests of other operators and consumers, but also damages the normal market competition process and the competition order. The consumer's choice of choice is free of interference and the real demand letter The number cannot be delivered accurately, resulting in an incorrect configuration and elimination of the resource In the face of the maintenance of the competition order, it is hard to complete the civil law, and it must be supplemented and corrected by the market rules in the field of economic law, so that the distorted market situation will be changed. The purpose and value of the contradiction between the individual and the social public welfare of the economic law are the pursuit of value, which indicates that it fully supports the ridging. Therefore, the civil remedy system of the anti-monopoly law is established by the provisions of the civil and commercial law and the economic law. The third aspect has chosen the anti-monopoly civil relief system of the United States, the European Union, the United Kingdom and Germany as an extraterritoriality, so as to be able to be relevant to our country. The research provides reference and reference. From the private relief to the private execution, this is a major role of the civil action in the field of anti-monopoly law, which is becoming more and more important In order to adapt to the new role of the private litigation, the anti-monopoly law of the relevant countries has also made special provisions in the design of the relief system, with a view to actively encouraging private prosecution and better The special provisions on a series of specific systems in the more developed countries in the field of anti-monopoly law undoubtedly play a good role in the design and construction of the civil remedy system of the anti-monopoly law in China. In the fourth aspect, by analyzing the principle characteristics of the legal basis of the civil remedies of the anti-monopoly law in China, the author holds that the civil liability of China's anti-monopoly law in the case of the monopoly is only in principle, and the civil liability Nothing in the content of the content provides that there is no special provision on the procedural system for private proceedings, which has led to the actual In addition, the anti-monopoly civil remedy in China is mainly embodied in the treatment of the anti-monopoly case, and the anti-monopoly law case is a very special case, which has the characteristics of highly technical, professional and complicated, which is anti-monopoly The private execution has brought many difficulties, which in turn hampers our country The fifth aspect is the final point of the anti-monopoly law, which is the most important part of the article, and the author thinks and explores how to build the civil remedy system of the anti-monopoly law in China, and discusses the guiding ideology and needs of the system design in detail. A perfect direction and a specific institutional arrangement. The victim has no courage or is incapable of raising the private civil service of the proceedings. In order to avoid the obstacles in the process of private litigation, especially in the relief mode, the prosecution, the jurisdiction, the proof, the litigation cost, the group lawsuit, etc. to provide convenient conditions for private litigation and to play an effective role in the private sector The author analyses and systematizes the above-mentioned problems, and aims to provide the relevant legislators with feasibility and constructive opinions, and push forward
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.294
本文编号：2446907
[Abstract]:The relief of anti-monopoly law has always been a field in the domain of anti-monopoly law. Civil relief is an important part of the whole relief system. However, China's anti-monopoly law has made the principle of the civil liability for monopoly conduct only in Article 50. How to turn into a real civil action, how to serve the realization of the anti-monopoly law legislative purpose, and what to perfect the supporting system? These are the questions that must be answered and studied in the construction of the civil remedy system in China's anti-monopoly law. The author expects that through the dialectical analysis and systematic study of the guiding ideology and the specific supporting system in the design of the civil remedy system of the anti-monopoly law, the author points out that the civil remedy system of the anti-monopoly law in China needs to be improved, so as to provide the legislators with the feasibility and the constructive meaning. See, the article discusses the anti-monopoly civil relief system from five aspects, the content of the content The first aspect is the definition of the civil remedy of the anti-monopoly law, which is also studied in this paper. In this paper, the civil relief of the anti-monopoly law refers to the civil action of the victim to the monopolistic act, analyzes the relationship between the civil remedy of the anti-monopoly law and the private execution of the anti-monopoly law, points out the dual function of the anti-monopoly civil remedy, that is, the compensation for the victim and to assist the law enforcement and reveal the deep behind the civil remedy system of the anti-monopoly law The second aspect analyses the civil remedies of the anti-monopoly law from the perspective of necessity and legitimacy The legal basis of the system is the introduction of any legal system, which is accompanied by the development of the social form and the demand of the progress of the times, and the civil service of the anti-monopoly law The same applies to the economic system. The extraterritorial anti-monopoly practice has repeatedly confirmed that the degree of implementation of the anti-monopoly law is very limited only by public law enforcement. The non-existent advantage is that the private litigation can play an important role in the implementation of the anti-monopoly law and realize the anti-monopoly law The function of the legislative purpose. The legal principle of the ", equality, fairness and good faith" of the civil and commercial law is reflected in the market competition, and is expressed as the right and the legal right to the fair competition of the market. The protection of economic benefits. However, in the real life, the behavior of monopolizing and limiting the competition not only damages the interests of other operators and consumers, but also damages the normal market competition process and the competition order. The consumer's choice of choice is free of interference and the real demand letter The number cannot be delivered accurately, resulting in an incorrect configuration and elimination of the resource In the face of the maintenance of the competition order, it is hard to complete the civil law, and it must be supplemented and corrected by the market rules in the field of economic law, so that the distorted market situation will be changed. The purpose and value of the contradiction between the individual and the social public welfare of the economic law are the pursuit of value, which indicates that it fully supports the ridging. Therefore, the civil remedy system of the anti-monopoly law is established by the provisions of the civil and commercial law and the economic law. The third aspect has chosen the anti-monopoly civil relief system of the United States, the European Union, the United Kingdom and Germany as an extraterritoriality, so as to be able to be relevant to our country. The research provides reference and reference. From the private relief to the private execution, this is a major role of the civil action in the field of anti-monopoly law, which is becoming more and more important In order to adapt to the new role of the private litigation, the anti-monopoly law of the relevant countries has also made special provisions in the design of the relief system, with a view to actively encouraging private prosecution and better The special provisions on a series of specific systems in the more developed countries in the field of anti-monopoly law undoubtedly play a good role in the design and construction of the civil remedy system of the anti-monopoly law in China. In the fourth aspect, by analyzing the principle characteristics of the legal basis of the civil remedies of the anti-monopoly law in China, the author holds that the civil liability of China's anti-monopoly law in the case of the monopoly is only in principle, and the civil liability Nothing in the content of the content provides that there is no special provision on the procedural system for private proceedings, which has led to the actual In addition, the anti-monopoly civil remedy in China is mainly embodied in the treatment of the anti-monopoly case, and the anti-monopoly law case is a very special case, which has the characteristics of highly technical, professional and complicated, which is anti-monopoly The private execution has brought many difficulties, which in turn hampers our country The fifth aspect is the final point of the anti-monopoly law, which is the most important part of the article, and the author thinks and explores how to build the civil remedy system of the anti-monopoly law in China, and discusses the guiding ideology and needs of the system design in detail. A perfect direction and a specific institutional arrangement. The victim has no courage or is incapable of raising the private civil service of the proceedings. In order to avoid the obstacles in the process of private litigation, especially in the relief mode, the prosecution, the jurisdiction, the proof, the litigation cost, the group lawsuit, etc. to provide convenient conditions for private litigation and to play an effective role in the private sector The author analyses and systematizes the above-mentioned problems, and aims to provide the relevant legislators with feasibility and constructive opinions, and push forward
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.294
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