滥用市场支配地位视角下的信用评级机构责任研究——兼论不确定性立法下的兜底条文重构

Research on the Responsibility of Credit Rating Institutions in the Perspective of Abuse of Market Dominance——Concurrently Discuss the Reconstruction of Miscellaneous Provisions under Uncertainty Legislation

信用是金融市场的基础,信用评级机构历经百年已然成为准监管机构,然而权责的严重不对称使得评级机构通过评级行为损害市场的现象屡屡发生。作为商事领域典型的自然垄断行业,侵权行为的实施者与其占据支配地位互为因果,仅通过传统侵权责任理论规则过分流于表面之发行人付费模式,却未能反映深层次的整个金融市场投资者对于信用评级的消费和依赖,而运用反垄断法的部门法工具可以较为完整地覆盖其法律责任,使之权责一致。另一方面,透过以评级行业为视角的责任研究,亦可反向构建约束滥用市场支配地位本身的不确定性的兜底条款,使得滥用市场支配地位中的模糊化立法处理既能价值有涉,亦能安定可预期,对反垄断法的研究亦有助力。

Credit is the foundation of financial market, credit rating agencies have become a quasi-regulatory body for centuries, the serious asymmetry of the powers and responsibilities of the rating agencies through the rating behavior of the phenomenon of damage to the market often occur.As a typical natural monopoly industry in the commercial field, the perpetrators of the infringement and the dominance almost mutual cause and effect. Only through the traditional tort liability theory can only find the surface of the issuer payment model, and failed to reflect the deep level of the entire financial market investors for the credit rating of consumption and dependence, And the use of anti-monopo- ly law department method tool can be more complete coverage of its legal responsibility, and make the power and re- sponsibility consistent.On the other hand, through the credit rating industry as the perspective of the responsibility of the study, it also reverse to construct the more effective miscellaneous provisions under uncertainty legislation in the perspective of abuse of market dominance, and deal with both the value of the relevant and stability, it also help the anti-monopoly law research.