中日韩贸易协定中反倾销制度存废之研究

Study on Abolishing Antidumping Legal System in China-Japan-Korea Free Trade Agreement

区域贸易中反倾销制度的存废问题与区域经济一体化密切相关。深度一体化的区域倾向于废除反倾销制度,特别是当区域一体化达到创建共同市场及以上程度时,反倾销因与单一市场这一根本宗旨相悖,在成员间予以取消尤为必要。实践中大部分区域贸易协定均未提及或仅确认保留WTO反倾销协定项下的权利义务,小部分协定对其做出取消或限制性修改,并可分为"取消反倾销法+统一区域竞争法"型、"取消反倾销法+协调国内竞争法"型、"取消反倾销法"型、"WTO反倾销协定实体规则plus"型以及"WTO反倾销协定程序规则plus"型五种类型。我国在今后的区域贸易谈判中应针对不同谈判对象,考察域内成员所希望达成的经济一体化程度以及在反倾销问题上的相似意向,并结合我国战略政策,确定采用何种反倾销安排方案。具体到中日韩自贸区,应以取消反倾销制度为最终目标,以"WTO反倾销协定plus"模式为过渡方案。

As article 120 of the Constitution of the Kingdom of the Netherlands states, ＂The constitutionality of acts of parliament and treaties shall not be reviewed by the courts＂, the Netherlands has been regarded as the ＂last fortress＂ against constitutional review in the West world. However, such position is not absent from criticisms at all. Since 1848, the debates sur- rounding the subject have never ceased. Particularly since 1980＇ , the Dutch judiciary has con- ducted ＂treaty screening＂ in relation to domestic laws in accordance with article 94 of the Dutch Constitution very frequently. This has further complicated the debate over constitutional review. Why the Netherlands allows the court to conduct ＂treaty review＂ but prohibits constitutional re- view ？ One may find the answer from the special Dutch concept of law, the Dutch constitution, the ＂Polder model＂ applied in running the country, and the influence of international law on the coun- try. The Dutch experience shows that it is the common commitment of countries all over the world to protect human rights, yet judicial review on the constitutionality of the law is not the only way to realize this goal. In order to protect human rights fully and maintain the unity of legal order, every country should map out its own institutional design on the basis of its concrete situation.