反垄断法体系之内的公平竞争审查制度

Fair Competition Review in the Anti-Monopoly Law System

公平竞争审查,旨在依据竞争影响的标准,厘清政府和市场的边界,最大程度减少政府对竞争的扭曲。但理论和实践中经常将其与反垄断法并列或者外化于反垄断法来理解,导致其法律地位被大幅降低,所能发挥的作用及其有限。解决这一问题的关键在于澄清反垄断法的制度机理,恢复公平竞争审查作为反垄断法内生制度的地位,在此基础上明确其制度依据、审查标准和方法,以及完善审查后机制,使其真正融入整个反垄断法实施体系。

Fair competition review aims to defne the border between the government and the market according to the standards of competition impact and minimize government distortions to competition. However, it is often considered in parallel with or separated from Anti-Monopoly Law in theory and practice, which results in a substantial reduction in its legal status and its extremely limited role. The key to solving this problem is clarifying the institutional mechanism of the anti-monopoly law and regaining its status as an endogenous system of the Anti-Monopoly Law. On this basis, we should clear its institutional foundation, standards and methods of review and perfect the mechanism after review, so that it can really integrate into the enforcement system of the whole Anti-Monopoly Law.