反不正当竞争法一般条款行政实施研究——以裁量权的建构为中心

Research on the Administrative Implementation of the General Terms of Anti-unfair Competition Law

我国正在修订的《反不正当竞争法》赋予行政机关实施一般条款的权力。一般条款以高度不确定的法律概念为其核心构成要件,如果授权执法者在适用过程中进行价值补充,执法者就因此获得一种立法性的裁量权。就我国现行执法体系而言,竞争执法机关行使该项权力存在法治层面的正当性隐忧,控制裁量权滥用的制度保障措施也有欠缺。提升执法人员的专业性,加强行政程序的公众参与,是满足裁量权正当性的基本要求;限定裁量权行使的最佳范围,进行自我控制的功能建构,实现司法审查的良性制约,是防止裁量权滥用的必要保障。以一般条款的实施为契机,我国竞争执法机关将完成从传统执法机关向现代管制机构的演进。

The revised draft of Anti-unfair Competition Law endows the administrative departments with powers to implement general clause. Based on the highly uncertain laws＇ concepts,the general terms authorize the executors to add values in the applicable process,and what the executors gain as a result is a legislative discretionary power. As far as our current law enforcement system is concerned,there exist fairness problems in the legal execution. Moreover,there are also defects in measures to guarantee the system of controlling the abuse of discretionary power. The professionalism of administrative organs as well as the administrative procedure＇s being able to realize the participation and coordination of stakeholders are the basic requirements to ensure the legitimacy of administrative discretion. The establishment of self-control function is a necessary guarantee to prevent the abuse of discretion. Taking implementation of general clause as an opportunity,our competition law enforcement authorities will complete its transition from the traditional law enforcement agencies to modern regulatory agencies.