摘要
竞争倡导是反垄断执法机构实施的除执法以外所有改善竞争环境的行为,具有促进和补充反垄断执法、推进竞争政策有效实施和推动竞争文化建设的重要作用。反垄断执法针对私人限制竞争,竞争倡导关注政府干预限制竞争的风险,故所倡导的竞争应围绕干预的适当性、主导权及期望实现的目标来界定。分析各国竞争倡导的制度路径,借鉴其成功经验并结合我国现实诉求,我国竞争倡导制度构建的重点在于引入立法优先咨询制度、推动准入管制的放松、逐步缩减反垄断除外适用范围、健全对管制的竞争评估、帮助企业进行合规制度建设,以形成多样化的倡导工具。
Competition advocacy refers to those activities conducted by the competition authority relating to the promotion of competitive environment for economic activities by means of non--en- forcement mechanisms. These activities can be classified into two groups. On one hand, competi- tion advocacy involves convincing other public authorities to abstain from adopting unnecessary anticompetitive measures. On the other hand, it comprises all efforts by competition authority to make other government entities, economic agents and the public at large more familiar with the benefits of competition and with the role competition law and policy can play in promoting compe- tition and enhancing welfare. So competition advocacy is of great importance to facilitate and com- plete antitrust enforcement, promote the effective implement of competition policy and build the competition culture. Only when the competition advocated by competition authority has enough rationality can it be accepted and observed by more stakeholders. Competition may not only be hindered by private anticompetitive conduct, but also, in certain circumstances, by public regulatory intervention and rule--making. Regulatory intervention may go beyond the strict necessities and impede competi- tion in some sectors. The antitrust enforcement is concerned with maintaining competition in pri- vate markets. So the determination of the competition advocated should concentrate on the appro- priateness of government intervention, the dominant power of government intervention and the objectives achieved by the competition. On the basis of the major countries＇ competition advocacy institutions, their successful expe- riences and the actual conditions in China, the following measures can be put forward on how ＂to establish competition advocacy institutions. It is necessary to introduce the institution of prior statutory consultation, promote the relaxation of limitations on taking part in competition, nar- row the range of exception of antitrust law step by step, improve the system of competition as- sessment of government regulation, and help enterprises set up corr^petition compliance programs, thus establish diversified competition advocacy tools. Competition is a dynamic process. In order to achieve effective competition, the advocacy activities conducted by competition authority must adapt themselves to the changes.
出处
《法学研究》
CSSCI
北大核心
2010年第5期113-127,共15页
Chinese Journal of Law
基金
本文为王先林教授主持的司法部重点课题"反垄断法实施问题研究"(08SFB1007)中期成果的一部分。
关键词
竞争倡导
竞争执法
立法优先咨询
竞争评估
合规指引
competition advocacy, antitrust enforcement, prior statutory consultation, competition assessment, competition compliance guidance
作者简介
博士研究生
