反思反垄断:我国应当建立温和型的反垄断制度

Review of Antitrust Law: China Should Establish A Moderate Model of Antitrust Legal System

自美国1890年颁布《谢尔曼法》以来,反垄断制度已经走过一个多世纪的历程,但至今人们对反垄断法的功过是非仍争论不休。反思反垄断必须承认反垄断制度是市场经济发展到一定阶段的产物,是维护市场竞争秩序的需要,对此目的而言,反垄断制度功不可没。但是,纵观各国反垄断实践,又不得不承认反垄断制度有时也打击了竞争积极性,成了一种"恶法",这表明反垄断制度具有特殊性。我国当前正在制定反垄断法,制定何种反垄断法能使反垄断制度更具适应性是值得思考的问题。文章提出建立温和型反垄断制度的观点,并阐述相应的理由,以期引起学界和立法界的重视。

The law relating antitrust has developed over one hundred years since the enactment of the Sherman Antitrust Act in the United States in 1890. The debate and controversy relating the merits of such law has, however, never rested. Rethinking antitrust law we must recognise that antitrust law is a product of the development of market economy. It is for the satisfaction of the need of protecting the process of competition in a market. In terms of this purpose, antitrust law has made significant contribution to the market competition. Through the examination and analysis of the legislation and the practice of antitrust law in various countries, we have to recognise that antitrust law occasionally undermines the rigor of competition and becomes a 'bad law'. This demonstrates the uniqueness of antitrust law and its application in the practice. China is in the process of drafting and legislating antitrust law and is confronted with the issues that which antitrust law framework it should adopt taking into consideration of the current Chinese economic and social development. This article proposes that China should establish a moderate model of antitrust law and provides the corresponding reasons and rationales to support this view in anticipation that it will stipulate further discussion among the academia and the legislature. 