论反垄断法私人执行之制度构建

On the System Construction of Private Enforcement of Anti-monopoly Law

我国反垄断法立法目的具有公益和私益二元性,决定了反垄断法公共执行和私人执行的双重性。相比当前占据主导地位的反垄断主管机关执行,反垄断法私人执行具有易发现违法行为、成本低、主动性强、监督公执行以及弥补公共资源不足等优势,更有利于社会正义的实现。反垄断法私人执行制度包括实体制度和程序制度。基于对国外反垄断法私人执行立法与实践的分析和借鉴,我国反垄断法私人执行实体制度应从主体资格、损害赔偿、归责原则、排除侵害等方面进行构建。程序制度方面,基于本身违法行为的价格固定、横向市场划分、联合抵制、转售价格维持、搭售协议等垄断行为宜适用直接执行模式;基于合理分析规则的合并、纵向地域限制和联营等垄断行为宜适用审决前置模式。

The legislative purpose of anti-monopoly law in China has the duality of public and private interests, which determines the duality of public and private enforcement of anti-monopoly law. Compared with the current dominant anti-monopoly authorities, private enforcement of anti-monopoly law has many advantages, such as easy to find illegal acts, low cost, strong initiative, supervision of public enforcement and making up for the shortcomings of public enforcement, which is more conducive to the realization of social justice. The private enforcement system of anti-monopoly law includes substantive system and procedural system. Based on the analysis and reference of the legislation and practice of private enforcement of foreign anti-monopoly law, the private enforcement entity system of China's anti-monopoly law should be constructed from the aspects of subject qualification, compensation for damages, imputation principle and elimination of infringement. In terms of procedural system, monopoly behaviors such as price fixing, horizontal market division, boycott, resale price maintenance and tying agreement based on their own illegal activities should be applied to direct execution mode;monopoly behaviors such as merger, vertical geographical restriction and joint venture based on reasonable analysis rules should be applied to pre-trial mode.