论反垄断法的谦抑性适用——基于总体执法观和具体方法论的分析

On Modest Application of Antimonopoly Law

反垄断法的谦抑性适用是指在总体执法态度和方法路径上的必要、适度、克制和非冒进的适用姿态。反垄断法执行的理想状态是不枉不纵、恰如其分和精准定位,但这种目标只可尽量接近而又难以企及,因而只能在总体执法效果上退而求其次。由于市场认知的困难性以及市场强大的自愈能力,在次优效果的追求中总体上可以采取必要的"宁纵不枉"的谦抑执法观,以尽量减少错误成本。反垄断法是经济与法律的结合体,经常以经济学分析为体,以法律方法为用,其谦抑性需要进行方法论上的贯彻。反垄断法兼具刚性和柔性,以法律解释为核心的法律方法是调和刚柔的路径与载体,通过谦抑的解释实现刚柔相济。经济学分析是反垄断法执行的重要支撑,但仍有其局限性。执法毕竟涉及"生杀予夺",运用经济学分析应当谨慎和适度,在反垄断法施行初期尤其要防止经济学分析"拜物教"。

The modest and restrained principle of anti-monopoly law enforcement refers to the necessary,moderate,restrained and non-aggressive attitude in the general law enforcement view and the path method.The ideal state of anti-monopoly law enforcement is impartial,appropriate and precise positioning.However,the ideal goal could not reach utterly but only could be as close as possible.Thus,it can only settle for less-than-ideal alternative on general enforcement effects.Due to the difficulty of understanding and the strong self-healing ability of the market,in the pursuit of less-than-ideal alternative,we could adopt the modest and restrained principle of law enforcement that"rather let off than treat unjustly"to minimize the cost of errors.Anti-monopoly law is a combination of economy and law.It often takes economic analysis as its essence and legal method as its manifestation.Its modest and restrained principle needs to be implemented in methodology.The anti-monopoly law has both rigidity and flexibility.The legal method with legal interpretation as the core is the path and carrier to reconcile rigidity and flexibility.The modest and restrained interpretation could realize the combination of rigidity and flexibility.Economic analysis is an important support for the implementation of the anti-monopoly law,but it still has its limitations.Since law enforcement involves“life or death”after all,economic analysis should be used cautiously and appropriately.In the early stage of the implementation of the anti-monopoly law,it is especially necessary to prevent“fetishism”of economic analysis.