竞争立法与竞争秩序建构——以行政垄断规制必要性为中心

On the Relationship between Competition Law Legislation and Competition Order Construction

对竞争秩序概念内涵、竞争秩序建构可行性、转型经济竞争秩序建构面临的主要问题等分析发现,发挥政府在市场化进程中的主导作用和限制政府对经济的不当干预是实现经济转型和竞争秩序建构的基本要求。出于行政力量和行政性安排在中国过度存在的基本社会现实,中国反垄断立法必须更多地从中国国情而不是西方现成经验中寻找制度的根基,行政垄断规制应当与竞争得以开展的基础制度和环境的确立、经济垄断和不正当竞争行为的防止同步进行。

After an analysis of such concepts as the definition of competition order, the order＇s construction possibility and the main problem that the construction of this order faces in the transition period of the economic reform, the present paper holds that it is the basic requirement that a leading role should be played by the government and at the same time, the improper governmental interference should be restrained in economy so that the economic transition can come true and the competition order can be constructed. Because of the basic social reality featured with excessive appearance of administrative power and administrative arrangements in Chinese economy, China＇s anti-monopoly legislation should try to find its institutional foundation, its basic system by proceeding from its own actual conditions rather than look for it out of the ready-made Western legislative experiences. The regulation of administrative monopoly should be practiced at the same time when we try to establish basic competition institutions and surroundings. The concurrence of economic monopoly and unwholesome competitive acts should be avoided.