反垄断诉讼的价值定位与制度建构
刘水林反垄断诉讼的价值定位与制度建构
Value Orientation and System Construction of Antitrust Litigation
期刊名称：《法学研究》
期刊年份：
作者：刘水林
单位：上海财经大学法学院
中文关键词：反垄断诉讼;有机社会;风险规制;秩序建构
英文关键词：antitrust litigation;organic society;risk regulation;order construction litigation
中文摘要：
反垄断诉讼是反垄断法实施的重要机制之一，是反垄断法理论研究和司法实践中的重要问题。对此问题有两种研究思路：一是以个人权利为中心，将诉讼看作争议解决机制；二是以秩序建构为中心，将诉讼看作建构理想秩序的重要机制。反垄断法的产生、发展与有机社会的生成同步。垄断行为属于风险行为，其造成的损害具有不确定性、延伸性、难以恢复性，因而反垄断法属于现代社会规制法。与此相应，反垄断诉讼应是秩序建构诉讼，在价值上注重竞争秩序的建构，在功能上主张司法能动、积极回应社会在竞争上形成的价值共识，在构造上主张放宽原告条件，建立多元参与的诉讼机制。
英文摘要：
Being one of the important mechanisms to implement the antitrust law, antitrust litigation is an important issue in both theoretical research and judicial practice. There are two research approaches on this issue. One is the individualist idea and thinking paradigm, which takes individual rights as the center and looks the litigation as a dispute resolution mechanism. The other is the holistic view and thinking paradigm, which takes order construction as the center and looks the litigation as an important mechanism for building the ideal order. This article is of the holistic point of view as to the value orientation and system construction of the mechanism of antitrust litigation. The history of antitrust law and social development shows that the formation and development of antitrust law is synchronous with the formation of organic society, and as a result, the damage caused by monopolization is mainly to the society as a whole, that is, to the condition of competition formed by the interaction of market subjects under certain market concept and system, not just to particular competitors or consumers. Differing from the harm to the individual, the harm to the whole is of uncertainty as regards to the specific subjects harmed, is dynamic as regards to the objects harmed, and is extensible and difficulty to calculate, restore and remedy as regards to the consequence of damage. These characteristics make the monopolization one kinds of risk behaviors, and the antitrust law falls into the category of modern social regulation law. According to the property of antitrust law, antitrust litigation should be the litigation of order construction. Such litigation, in value, lays stress on the safeguard of competition order instead of the protection of individual rights. In function, it advocates judicial activism and positive response to common values formed among competition in the society. In the system construction, it is in favor of the relaxation of qualifications of the plaintiff and the establishment of a litigation mechanism of multiple participations.
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