我国反垄断法的域外适用

Extraterritorial Application of China's Antimonopoly Law

根据我国反垄断法第2条,我国反垄断法也适用于我国境外发生但对我国市场竞争能够产生排除、限制竞争影响的垄断行为。这说明,我国反垄断法具有域外适用的效力。本文探讨了反垄断法域外适用产生的原因以及存在的问题。本文指出,为了避免和减少管辖权的冲突和法律冲突,我国反垄断法域外适用应当考虑国际法上被广泛认可的一般原则,特别是"直接、重大和合理预见的效果"的原则和"国际礼让"原则。

According to Article 2 of Chinas Antimonopoly Law, this law shall apply also to the activities conducted outside of P. R. China that eliminate or have restrictive effect on competition in the domestic market. That means that China＇s Antimonopoly Law based on the effect doctrine has long-arm jurisdiction over restrictive conducts created in foreign coun- tries. This article indicates the justification of the effect doctrine, and its problems in practice. The author suggests that along with the implementation of Article 2, Antimonopoly Authority should consider the international customary law, i.e. the comity principle, and as pre-condition for the jurisdiction over a restriction outside China, the restriction has a direct, substantial and reasonably foreseeable effect in China.