行政垄断的本质及其救济——由“中国反垄断法第一案”所引发的思考

The Nature and Relief of Administrative Monopoly——The Thinking Arising from"the First Case about Anti-monopoly Law in China "

我国《反垄断法》实施的第一起案件是以国家质检总局为被告的行政垄断案。尽管该案被一审法院拒绝受理,但该案对推进政府依法行政的作用不可忽视。本案中,国家质检总局以监管产品质量为名所进行的一系列干预市场的行为,仅有组织法上的依据而无行为法上的授权,违反了依法行政原则,构成行政垄断行为。而行政垄断的本质是行政违法行为,属于行政法规制的范围,因此,行政相对人或利益相关者可依据行政法的规定进行救济。

The first case since the implementation of Anti-monopoly Law was that the General Administration of Quality Supervision was accused of administrative monoply. Although the case was rejected by the Court of First Instance, the case on the Government to promote the role of administration according to law can not be ignored. In the case, the General Administration of Quality Supervision to monitor the quality of products by the name of a series of market intervention, is only on the base of the organic law without authorization of behavior law in violation of the principle of administration according to law, constituting acts of administrative monopoly. The essence of the administrative monopoly is administrative violations, belong to the scope of the system of administrative laws and regulations, relative persons of administration or relative stakeholders can be relieved on the base of the provisions of the administrative law.