我国公平竞争审查例外制度的适用困境与对策

Dilemma and Countermeasures in the Application of Exception System of Fair Competition Review in China

近年来,我国持续深入推进公平竞争审查,强化竞争政策的基础性地位。出于协调竞争政策与其他经济政策的考量,我国公平竞争审查制度设置了例外制度安排,允许实施具有限制竞争效果但符合规定情形和条件的政策措施。但是,由于相关规则抽象模糊,例外制度的适用存在滥用或误用的问题,有损公平竞争审查制度的实效。当前,《公平竞争审查制度实施细则》已正式出台,但例外制度的适用在实体与程序方面均存在较多问题。为了构建符合我国国情的公平竞争审查例外制度,在实体层面,应根据比例原则和附属限制理论明确例外情形和限制性条件;在程序层面,需要形成科学可行的操作流程和监督机制。

In recent years,China has been making efforts to promote the implementation of fair competition review and strengthened the fundamental position of competition policy. In consideration of the coordination of competition policy and other economic policies,China’s fair competition review system has an exception system,which allows policies and measures that have a certain restrictive effect but meet the prescribed conditions. However,due to the abstraction and vagueness of relevant rules,the application of the exception system could be abused or misused,which undermines the effectiveness of the fair competition review system. Although the Detailed Rules for the Implementation of the Fair Competition Review System has been officially promulgated,the application of the exception system has many problems both in terms of entities and procedures. To build a fair competition review exception system that meets China’s national conditions,it is recommended to clarify exceptions and restrictive conditions based on the principle of proportionality and subsidiary restriction theory in terms of the entity level;and in terms of procedures,to form a scientific and feasible operating process and supervision mechanism.