我国对外贸易反垄断豁免失当性分析及其完善

The Analysis and Perfection on the Invalidity of the Exemption from the Antimonopoly of the Foreign Trade in China

我国《反垄断法》第15条规定的对外贸易豁免包括进口豁免和出口豁免。进口卡特尔豁免的基础系竞争者保护优先于竞争保护,这不利于我国当前及未来进口产业的竞争力提高,并有可能违反WTO国民待遇原则,应予以禁止适用。我国出口豁免的卡特尔系混和性的,其规定虽具一定合理性,但必须对"正当利益"豁免要件进行限缩性解释,防止此条款的滥用引起不必要的损害。

Article 15 in Chinese（Antimonopoly Law） provides that the exemption from the foreign trade includes the exemption from the export and import. The basis of the exemption from import cartel is the priority of the protection of competitor over the protection of competition, which is adverse to the improvement of Chinese import industry at present and in the future and may be contrary to the National Treatment of WTO, and it should be prohibited to be applied. The exemption of export cartel is mix, whose regulation is reasonable in some certain. But we should explain narrowly the the constituent requirement of its exemption so that the abuse of the regulation is prevented to cause unnecessary harm.