反垄断私人诉讼困境与反垄断执法的管制化发展
李剑反垄断私人诉讼困境与反垄断执法的管制化发展
Difficulties of Anti-monopoly Private Litigation and the Regulative Development of Anti-monopoly Law Enforcement
期刊名称：《法学研究》
期刊年份：
作者：李剑
单位：上海交通大学凯原法学院
中文关键词：反垄断法;反垄断私人诉讼;管制;反垄断执法机构
英文关键词：anti-monopoly law;anti-monopoly private litigation;regulation;enforcement organ of anti-monopoly law
中文摘要：
中国反垄断法私人诉讼的发展与预期落差巨大。原因在于，反垄断法私人诉讼强调法院的作用，但法院受限于司法机构的根本性质，存在难以调节原被告力量失衡、对于特定行为无法救济以及救济不及时的问题。相比之下，反垄断法行政执法机构具有资源与权力配置上的显著优势。更重要的是，现代反垄断法执法的不断发展和演化，使原来简单判断是否违法的执法方式向以提高社会整体福利为目标的管制方式转变。在这一过程中，建立独立的反垄断执法机构、颁布反垄断指南、广泛采用同意裁决、深入运用经济学分析等都是具体表现。与之相应，当反垄断行政执法占据中心地位时，为了确保其不偏离反垄断法的目标，须建立完善的行政机构内部执法程序以及司法审查程序，进行有效制约。
英文摘要：
Since Chinese Anti-Monopoly Law was enforced in 2008, there has been a big gap between the development of the anti-monopoly private litigation and the expectation of the law. Until now, no plaintiff won a case in the anti-monopoly lawsuits, mainly because the court usually plays a passive role during a trial, while anti-monopoly case requests the court and judge to be more active. Moreover, in an anti-monopoly case, the defendant is generally much more powerful and influential than the plaintiff, and such unbalanced situation cannot be solved by the traditional civil procedure. Still, the court can hardly deal with certain special cases, e.g. refusal of a deal. Lastly, it always takes time to go through judicial procedure, so the remedy may not be provided in time. So, the troubles that the current anti-monopoly private litigation is facing cannot be solved by the improvement or adjustment within civil procedure system.In contrast, the administrative enforcement authorities of anti-monopoly law are more competent than the courts in respect of resources and power allocation. More importantly, as the enforcement of the anti-monopoly law is developing, the administrative enforcement authorities do not focus on whether a behavior is illegal or not any longer. They target to improve the social welfare. During the transitional period, independent administrative enforcement organs are established, the guidelines of enforcement are promulgated, economic analysis is applied widely, and the organization of the enforcement organs is changed. Compared with the courts, the administrative enforcement organs are playing a more and more important role. Accordingly, when the enforcement of anti-monopoly law is developing in the direction of regulation, it is necessary to improve both the administrative procedure and the judicial review to prevent it from deviating from the final goal of safeguarding competition and protecting the rights and interests of consumers.
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