竞争倡导研究
张占江竞争倡导研究
A Study on Competition Advocacy
期刊名称：《法学研究》
期刊年份：
作者：张占江
单位：上海交通大学法学院
中文关键词：竞争倡导;竞争执法;立法优先咨询;竞争评估;合规指引
英文关键词：competition advocacy;antitrust enforcement;prior statutory consultation;competition assessment;competition compliance guidance
中文摘要：
竞争倡导是反垄断执法机构实施的除执法以外所有改善竞争环境的行为，具有促进和补充反垄断执法、推进竞争政策有效实施和推动竞争文化建设的重要作用。反垄断执法针对私人限制竞争，竞争倡导关注政府干预限制竞争的风险，故所倡导的竞争应围绕干预的适当性、主导权及期望实现的目标来界定。分析各国竞争倡导的制度路径，借鉴其成功经验并结合我国现实诉求，我国竞争倡导制度构建的重点在于引入立法优先咨询制度、推动准入管制的放松、逐步缩减反垄断除外适用范围、健全对管制的竞争评估、帮助企业进行合规制度建设，以形成多样化的倡导工具。
英文摘要：
Competition advocacy refers to those activities conducted by the competition authority relating to the promotion of competitive environment for economic activities by means of non-enforcement mechanisms. These activities can be classified into two groups. On one hand, competition advocacy involves convincing other public authorities to abstain from adopting unnecessary anticompetitive measures. On the other hand, it comprises all efforts by competition authority to make other government entities, economic agents and the public at large more familiar with the benefits of competition and with the role competition law and policy can play in promoting competition and enhancing welfare. So competition advocacy is of great importance to facilitate and complete antitrust enforcement, promote the effective implement of competition policy and build the competition culture. Only when the competition advocated by competition authority has enough rationality can it be accepted and observed by more stakeholders. Competition may not only be hindered by private anticompetitive conduct, but also, in certain circumstances, by public regulatory intervention and rule-making. Regulatory intervention may go beyond the strict necessities and impede competition in some sectors. The antitrust enforcement is concerned with maintaining competition in private markets. So the determination of the competition advocated should concentrate on the appropriateness of government intervention, the dominant power of government intervention and the objectives achieved by the competition. On the basis of the major countries’competition advocacy institutions, their successful experiences and the actual conditions in China, the following measures can be put forward on how to establish competition advocacy institutions. It is necessary to introduce the institution of prior statutory consultation, promote the relaxation of limitations on taking part in competition, narrow the range of exception of antitrust law step by step, improve the system of competition assessment of government regulation, and help enterprises set up competition compliance programs, thus establish diversified competition advocacy tools. Competition is a dynamic process. In order to achieve effective competition, the advocacy activities conducted by competition authority must adapt themselves to the changes.
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