《反垄断法》在政府采购领域的实施问题研究——从立法和执法两个层面切入

Research on the Implementation of《 Anti-monopoly Law》 in the Field of Government Procurement -- Analyzing from the levels of legislation and law enforcement

一直以来,政府采购中的垄断行为屡禁不止,《反垄断法》的实施和监管严重受阻是重要原因,因此《反垄断法》在政府采购中的实施地位亟需明确。从法律规定的内容上看,《反垄断法》与采购相关法具有统一的实施目的,但采购相关法中的垄断行为规定相对更为具体,而且《反垄断法》的责任设置过严,由此采购相关法应当处于主导地位,《反垄断法》更应保持谦抑并发挥支持和监督作用,从执法成本和效益上的分析也印证了立法上两法实施关系的科学性和合理性。从执法的专业性和独立性的角度看,两法实施上更应强调资源和能力的整合以及各自优势的有效发挥,《反垄断法》的兜底和监督介入地位应予确认,以实现政府采购中垄断行为规制的严密性和有效性。

For a long time, monopoly activities, in government procurement, has been prohibited repeatedly. The vital reason is that the implementation and supervision of the Anti-monopoly Law are seriously hindered. Therefore, the status of the Anti-monopoly Law in government procurement needs to be clarified urgently. From the content of legal provisions, the Anti-monopoly Law and procurement-related laws have a unified implementation purpose. However, the monopoly act provisions in procurement-related laws are relatively more specific, while the responsibilities in the Anti-monopoly Law are too strict. Therefore, procurement-related laws should be in the dominant position, and the Anti-monopoly Law should maintain modesty and play a supporting and supervising role. The scientific and rationality of such legislative relationship are also confirmed with the analysis of the cost and benefit of law enforcement. From the perspective of professionalism and independence of law enforcement, in the implementation of the two laws, the integration of resources and capabilities should be emphasized,and the effective exertion of their respective advantages also need be stressed. The deep-rooted and supervisory intervention status of the Anti-monopoly Law should be confirmed .This way, the strictness and effectiveness of the regulation of monopoly behavior in government procurement could be achieved.