竞争法的思想基础与价值共识

On the Ideological Foundation and Value Consensus of Competition Law

竞争法的思想基础一直充满争议,众说纷纭的观点充分体现了竞争法思想内在的冲突与矛盾。西方古典自由主义的衰落使竞争法应运而生,德国弗莱堡学派"在自由中寻求秩序"的思想影响了欧洲竞争法观念的产生与制度的形成,竞争法成为秩序自由主义的法律表达。秩序自由主义旗帜鲜明地捍卫自由主义立场,但并不绝对排斥国家干预的存在。事实上,竞争法的产生得益于自由主义与干预主义的协同作用,但二者始终是目的与手段关系。在竞争法产生与发展的世纪长河里,我们不仅可以看到自由主义与国家干预此消彼长的历史轨迹,还可以看到竞争法如何"在自由中建立秩序",如何在规制市场竞争行为中凝聚自由与公平的价值共识。

The ideological foundation of competition law has always been controversial,and the controversial and divergent opinions fully represent the inherent conflicts and contradictions of the ideology of competition law. The competition law emerged with the declining of western classical liberalism. The German Freiburg School’s thought of "seeking order in freedom"influenced the emergence of European concept of competition law and the formation of system whereof. The competition law became the legal expression of Ordo-liberalism,which firmly defends the position of liberalism,but it does not absolutely exclude state intervention. In fact,the emergence of competition law benefited from the synergistic effect of liberalism and economic interventionism,in which both are served as an end and means. The long history of the emergence and development of competition law witnesses not only the vicissitudes of liberalism and state intervention,but also the fact that competition law "seeks order in freedom"and gathers the value consensus of competition freedom and economic fairness when regulating anticompetitive practices.