关于反垄断民事责任的若干思考

On the Identification of Civil Liabilities in Anti-Monopoly Law

反垄断民事责任的承担涉及到主体、行为、方式等方面的问题。理论上说反垄断民事责任的承担主体应为实施了垄断行为的任何"人",但在实际承担责任时并非如此,许多主体特别是具体实施了垄断行为的企业内部人员、行业协会、滥用行政权力的行政机构及其法律、法规授权的具有管理公共事务职能的组织等通常不能作为独立的民事责任主体。由于垄断协议以及经营者集中等行为具有不同性质,其民事责任的承担也会有所差别。反垄断民事责任的承担在一定情形下需要考虑反垄断机构的前期行为,责任的具体认定也有别于一般民事责任。民事责任承担的方式主要是停止或消除垄断行为以及赔偿损失。

The identification of civil liabilities in anti-monopoly law involves the clarification of such issues as subject,behavior,forms,etc.In theory,the subject of anti-monopoly civil liabilities includes any person who has implemented a monopoly conduct.But in practice it is not that simple,and particularly when the actors are those who are the internal staff of business implementing monopoly conducts,the trade associations,the administrative agencies abusing their powers and the organizations with administrative capacity authorized by laws and regulations but abusing their executive powers,they can not be regarded as qualified to assume civil liability independently.The assumption of civil liabilities may vary due to the different natures of monopoly agreements and concentrations.Under certain circumstances,when considering the assumption of antitrust civil liabilities,preliminary measures of anti-monopoly agency shall be put into account,and the identifying of civil liabilities is also different from the determination of civil liabilities in general.The forms of civil liabilities are mainly practiced as termination or elimination of monopolistic conducts and compensation.