竞争政策：经验与文本的交织进化
史际春,赵忠龙竞争政策：经验与文本的交织进化
Competition Policy：the Interlaced Evolution of Experience and Text
期刊名称：《法学研究》
期刊年份：
作者：史际春,赵忠龙
单位：中国人民大学法学院教授;中国人民大学法学院
中文关键词：竞争法;竞争政策;经济政策;法治
英文关键词：competition law;competition policy;economic policy;rule of law
中文摘要：
竞争政策是国家制订、贯彻经济政策和反垄断法实施中面临的一个基础命题。在竞争政策系统中，总是存在剩余立法权和剩余执法权。这一方面要求政策执掌者勤勉、忠信、合理地善用自己的专业判断能力和权力，另一方面要求将其权力纳入可问责的法治轨道中去。竞争法的文本交织于竞争政策的动态经验，不仅构成政府调控、监管经济的实践理性，而且反映出我国国家战略发展进程中国家治理模式的变迁。
英文摘要：
The competition policy is a basic proposition in the making and enforcement of state’s economic policy and the implementation of competition law. The reason why a society ruled of law still needs policies lies in that laws alone cannot carry themselves out. Legislations, regulations and clauses are full of contradictions, duplications, mistakes and gaps, so proper policies are needed to eliminate the impure, retain the pure, fill up vacancies and supply deficiencies, thus policies become the creeds and guidelines of laws. Meanwhile, policy making and enforcement cannot kick over the law, thus policy and law have been blent into the same system.Competition policy system is comprised not only of competition laws, but also of their enforcing institutions such as competition law enforcement agencies and ultimate courts. In the competition policy system, there always stands residual law-making power and residual law-enforcing power, which requires the decision-makers to perform their business judgment ability and power with diligence, fiduciary duty and equitability, as well as to bring their power into the accountability mechanism. One of the most important reforming measures taken by Chinese government is to establish special regulatory organs to weaken the monopoly power of government departments in charge and some big enterprises. But the systematic effect of competition policy is not formed simultaneously because the organs lack of competition idea and relevant policies. To prevent one branch from becoming supreme, to protect the “opulent minority” from the majority, and to induce the branches to cooperate, the governance system should form the mechanism of separation of power.The design of the competition policy program can follow various approaches that involve different combinations of policy instruments. The text of competition law is combined with the empirical competition policy in a perspective of legal evolution, which becomes the practical ration of government regulating economy and government’s economic activity and reflects the transition of government governance pattern in the consideration of national strategy.
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