论我国反行政垄断司法救济制度的构建
发布时间：2018-07-25 09:03
【摘要】：十八届三中全会决定指出：“紧紧围绕使市场在资源配置中起决定作用深化经济体制改革，要进一步处理好政府和市场的关系，使市场在资源配置中起决定作用和更好地发挥政府的作用”。这是我国经济体制改革的核心，也是市场经济自由公平竞争的客观要求。而作为阻碍市场经济自由、平等、公平、有序发展的“宿敌”——行政垄断一直是市场规制所要解决的顽症。实现对行政垄断的有效规制一直是学术界研究的重点，也是竞争法所要解决的难点。由于行政垄断先天的复杂性、专业性、政策性和法律性使得实现对其有效规制变得愈加困难。从其产生至今，学术界提出了各种规制理论，无论是“政治体制改革论”、“综合治理论”还是“法律规制论”都力求使得行政垄断能得到有效控制。但实践证明，行政垄断在过去的几年里不但没有得到有效的规制，反而变本加厉。因此，，实现对行政垄断的有效控制需要寻求一种的新的规制方法，新的制度突破，那就是司法控制，利用司法救济制度实现对行政垄断的有效规制。 本文紧紧围绕“司法权对行政垄断的规制”，采用理论研究方法和比较分析方法，从四个部分对行政垄断和构建反行政垄断司法救济制度问题进行探讨。 第一部分简要分析行政垄断和反行政垄断司法救济制度。在简述学界对行政垄断概念界定不同的基础上，提出行政垄断是行政主体（国务院除外）滥用行政权力，排除、限制竞争的一种违法行为。理解该概念实质时需要把握两点，一是行政垄断实施的主体是除了国务院以外的行政主体，其与行政权力具有天然的联系；二是行政主体实施的排除、限制竞争的违法行为更多表现在抽象行政行为，也就是抽象行政垄断，这也是司法救济制度所要规制的重点。接着，从反行政垄断司法救济制度的概念分析出发，剖析其法律基础并回顾学术界和现行法律制度关于规制行政垄断的相关理论制度，分析它们存在的不足，提出用“司法救济制度制约行政垄断”实现对行政垄断的有效控制这一制度突破。 第二部分集中介绍分析域外构建反行政垄断司法救济制度的实践及启示。分别从市场经济发达国家和经济转型国家两个侧面来阐述域外反行政垄断司法救济制度构建的实践经验，提出我国在构建反垄断司法救济制度时应该借鉴的理论和实践成果。 第三部分主要论述我国构建反行政垄断司法救济制度的现实性。该部分立足我国国情及理论实际，从构建中面临的问题、构建的必要性、构建的可行性三个方面阐释该制度建立所要解决的主要问题及其构建的条件基础，提出当前构建反行政垄断具有现实的必要性和实现的可能性。 第四部分重点探讨构建反行政垄断司法救济制度的路径。诉讼的一般逻辑过程是起诉—审理——执行—监督。反行政垄断司法救济制度的设计也必须要遵循诉讼的逻辑架构，因此，在这一部分首先提出要明确反行政垄断的原被告范围及赋予其直接“司法权利”，这是救济制度的基石。其次，要确定反行政垄断的诉讼模式及案件的审查标准，这是法院受理及审判的前提。接着要确立案件的法院管辖和执行监督，这是权利实现的最后保障。最后要建立配套可行的公益经济诉讼机制和对应的国家赔偿制度，以更好地实现权利救济。 没有最好的理论，只有更好制度，对行政垄断的有效规制不是一个静态的墨守成规，而是一个动态的与时俱进。因此，反垄断司法救济制度的构建不是一劳永逸，一蹴而就的，它也是一个不断发展完善的动态理论制度，需要学界仁人志士的上下而求索。
[Abstract]:In the third Plenary Session of the 18th CPC Central Committee, the decision pointed out: "tightly around the market in the allocation of resources to play a decisive role in deepening the economic system reform, to further deal with the relationship between the government and the market, to make the market play a decisive role in the allocation of resources and to better play the role of the government." this is the core of China's economic system reform, but also the market economy. The objective requirement of the fair and fair competition of the economy is the "old enemy" which hinders the free, equal, fair and orderly development of the market economy. The administrative monopoly has always been a stubborn problem to be solved by the market regulation. The effective regulation of administrative monopoly has always been the focus of the academic research and the difficulty to be solved by the competition law. The innate complexity, professionalism, policy and legality have made it more difficult to regulate it effectively. Since its emergence, the academic circles have put forward various rules and regulations, whether it is "the theory of political system reform", "comprehensive treatment theory" or "legal regulation theory" all strive to make the administrative monopoly effective control. It is proved that the administrative monopoly has not been effectively regulated in the past few years, but it has intensified. Therefore, to realize the effective control of administrative monopoly, a new regulation method should be sought, and the new system breakthroughs, that is, judicial control, and the effective regulation of administrative monopoly by the judicial relief system.
This paper, focusing on "the regulation of judicial power to administrative monopoly", adopts the theoretical research method and comparative analysis method, and discusses the administrative monopoly and the construction of the anti administrative monopoly judicial relief system from four parts.
The first part is a brief analysis of the administrative monopoly and the anti administrative monopoly judicial relief system. On the basis of the different definition of the concept of administrative monopoly, the author puts forward that administrative monopoly is an illegal act of abusing administrative power, excluding the administrative power, excluding, and restricting competition. The main body of monopolistic implementation is the administrative subject other than the State Council, which has a natural connection with the administrative power; two is the exclusion of the administrative subject, and the illegal act restricting the competition is more manifested in the abstract administrative act, that is, the abstract administrative monopoly, which is the key point to be regulated by the judicial relief system. Then, from the anti administrative ridge. On the basis of the conceptual analysis of the system of judicial relief, it analyzes its legal basis and reviews the relevant theoretical systems of the academic circles and the current legal system on the regulation of administrative monopoly, analyzes the shortcomings of their existence, and puts forward the breakthrough of the system of effective control of administrative monopoly by "judicial relief system restricts administrative monopoly".
The second part focuses on the introduction and analysis of the practice and Enlightenment of the construction of the anti administrative monopoly judicial relief system outside the region. From the two aspects of the developed market economy and the economic transition countries, the practical experience of the construction of the judicial relief system for anti administrative monopoly is expounded respectively, and the reason that China should be used for reference in the construction of the antitrust judicial relief system is put forward. The results of the theory and practice.
The third part mainly discusses the reality of building anti administrative monopoly judicial relief system in our country. This part is based on the national conditions and theoretical reality of our country, the necessity of construction in the construction and the feasibility of construction in three aspects to explain the main questions to be solved and the basis for the construction of the system, and put forward the current construction counter. Administrative monopoly has realistic necessity and possibility.
The fourth part focuses on the path of constructing the anti administrative monopoly judicial relief system. The general logic process of the lawsuit is the prosecution trial execution supervision. The design of the anti administrative monopoly judicial relief system must also follow the logical structure of the lawsuit. Therefore, in this part, we first put forward to clear the scope of the original defendant's scope against administrative monopoly. And endow it with the direct "judicial rights", which is the cornerstone of the relief system. Secondly, it is necessary to determine the litigation mode of anti administrative monopoly and the examination standard of the case. This is the premise of the court admissibility and trial. Then, the court jurisdiction and supervision of the cases should be established, which is the final guarantee of the realization of the rights. The economic litigation mechanism and the corresponding state compensation system can better realize the right relief.
There is no best theory, only a better system, the effective regulation of administrative monopoly is not a static rule, but a dynamic pace of keeping pace with the times. Therefore, the construction of the antitrust judicial relief system is not once and for all, and it is also a dynamic and dynamic theoretical system, which needs the academic circles and people with lofty ideals. Go up and down and ask for it.
【学位授予单位】：广东财经大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.294;D925.3
本文编号：2143321
[Abstract]:In the third Plenary Session of the 18th CPC Central Committee, the decision pointed out: "tightly around the market in the allocation of resources to play a decisive role in deepening the economic system reform, to further deal with the relationship between the government and the market, to make the market play a decisive role in the allocation of resources and to better play the role of the government." this is the core of China's economic system reform, but also the market economy. The objective requirement of the fair and fair competition of the economy is the "old enemy" which hinders the free, equal, fair and orderly development of the market economy. The administrative monopoly has always been a stubborn problem to be solved by the market regulation. The effective regulation of administrative monopoly has always been the focus of the academic research and the difficulty to be solved by the competition law. The innate complexity, professionalism, policy and legality have made it more difficult to regulate it effectively. Since its emergence, the academic circles have put forward various rules and regulations, whether it is "the theory of political system reform", "comprehensive treatment theory" or "legal regulation theory" all strive to make the administrative monopoly effective control. It is proved that the administrative monopoly has not been effectively regulated in the past few years, but it has intensified. Therefore, to realize the effective control of administrative monopoly, a new regulation method should be sought, and the new system breakthroughs, that is, judicial control, and the effective regulation of administrative monopoly by the judicial relief system.
This paper, focusing on "the regulation of judicial power to administrative monopoly", adopts the theoretical research method and comparative analysis method, and discusses the administrative monopoly and the construction of the anti administrative monopoly judicial relief system from four parts.
The first part is a brief analysis of the administrative monopoly and the anti administrative monopoly judicial relief system. On the basis of the different definition of the concept of administrative monopoly, the author puts forward that administrative monopoly is an illegal act of abusing administrative power, excluding the administrative power, excluding, and restricting competition. The main body of monopolistic implementation is the administrative subject other than the State Council, which has a natural connection with the administrative power; two is the exclusion of the administrative subject, and the illegal act restricting the competition is more manifested in the abstract administrative act, that is, the abstract administrative monopoly, which is the key point to be regulated by the judicial relief system. Then, from the anti administrative ridge. On the basis of the conceptual analysis of the system of judicial relief, it analyzes its legal basis and reviews the relevant theoretical systems of the academic circles and the current legal system on the regulation of administrative monopoly, analyzes the shortcomings of their existence, and puts forward the breakthrough of the system of effective control of administrative monopoly by "judicial relief system restricts administrative monopoly".
The second part focuses on the introduction and analysis of the practice and Enlightenment of the construction of the anti administrative monopoly judicial relief system outside the region. From the two aspects of the developed market economy and the economic transition countries, the practical experience of the construction of the judicial relief system for anti administrative monopoly is expounded respectively, and the reason that China should be used for reference in the construction of the antitrust judicial relief system is put forward. The results of the theory and practice.
The third part mainly discusses the reality of building anti administrative monopoly judicial relief system in our country. This part is based on the national conditions and theoretical reality of our country, the necessity of construction in the construction and the feasibility of construction in three aspects to explain the main questions to be solved and the basis for the construction of the system, and put forward the current construction counter. Administrative monopoly has realistic necessity and possibility.
The fourth part focuses on the path of constructing the anti administrative monopoly judicial relief system. The general logic process of the lawsuit is the prosecution trial execution supervision. The design of the anti administrative monopoly judicial relief system must also follow the logical structure of the lawsuit. Therefore, in this part, we first put forward to clear the scope of the original defendant's scope against administrative monopoly. And endow it with the direct "judicial rights", which is the cornerstone of the relief system. Secondly, it is necessary to determine the litigation mode of anti administrative monopoly and the examination standard of the case. This is the premise of the court admissibility and trial. Then, the court jurisdiction and supervision of the cases should be established, which is the final guarantee of the realization of the rights. The economic litigation mechanism and the corresponding state compensation system can better realize the right relief.
There is no best theory, only a better system, the effective regulation of administrative monopoly is not a static rule, but a dynamic pace of keeping pace with the times. Therefore, the construction of the antitrust judicial relief system is not once and for all, and it is also a dynamic and dynamic theoretical system, which needs the academic circles and people with lofty ideals. Go up and down and ask for it.
【学位授予单位】：广东财经大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.294;D925.3
【参考文献】
相关期刊论文 前1条
1 王仁富;;我国行政垄断的可诉性探析[J];经济法论丛;2009年02期
本文编号：2143321
本文链接：https://www.wllwen.com/falvlunwen/susongfa/2143321.html
