【作者】 冯辉；

【导师】 蒋悟真；

【作者基本信息】 湖南大学 ， 经济法学， 2007， 硕士

【摘要】 产业法是国家基于特定的经济意志和目的对特定产业进行干预的法律规范的集合,在此意义上基本等同于产业政策法。产业法是产业政策的法律化,但这种转化必须符合特定的实体和程序条件。竞争政策是国家基于一定的经济目的特别是一定的产业目的而对市场竞争作出的干预,包括鼓励和促进,但主要是限制。因此竞争政策与以维护自由、充分竞争为首要价值目标的竞争法截然不同。竞争政策属于产业法与竞争法的重合地带。国际竞争法与国际竞争政策则不存在这种区分,都是指在国际层面为维护、促进和保障自由竞争而进行的规则供给。当前经济实践中产业法与竞争法两相对冲的表现有:政府产业意志对市场竞争意志的压制;“适用除外条款”构筑产业政策法统治的“王国”;产业意志及产业法的滥用导致恶性循环。二者两相对冲的成因包括:传统的理念和行为范式在特定产业领域的监守;国际环境的压迫效应与传统的监守互相映照和强化;既有制度和利益造成路径依赖;诸多应然制度缺位。产业法与竞争法功能组合的理论基础可以从两方面理解:一是从部门法划分理论的反思看,传统的部门法划分理论割裂了产业法与竞争法之间的客观联系,实现科学合理的部门法分工要求二者之间的功能组合。二是法律间功能组合的一般性理论来看,产业法与竞争法的功能组合符合一般的理论需要,更具有客观的现实诉求。产业法与竞争法的功能组合具有重大的实践意义,一是缔造与提升国民经济竞争力;二是促进与维护社会竞争利益。产业法与竞争法功能组合的基本框架包括组合的理念、原则、层次和机制四个方面。首先必须要改变单纯的“补”的窠臼,而走向一种“共生”的组合理念。组合的原则应当包括合理区分组合的自发性和建构性;合理区分不同的组合层次;合理区分组合的本土性和普适性。组合应包括理念、规范和现实三个层次。功能组合需要积极适应的机制,包括耦合的组合手段和具体的法治系统。中国经济背景下产业法与竞争法功能组合的一般性制度结构设计应该是序列化、层次化的渐进性制度供给。首先是进一步放开国内竞争市场,放弃目前盛行的管制与审批制度,为更多的市场主体进行投资营造良好的环境。其次是打破市场寡头的垄断结构,同时在一些环节上大胆放开市场以实现局部充分竞争。最后应加快国有寡头的公司治理建设,实现股份化和多元化的改造。更多还原

【Abstract】 The industry law refers to the collection of laws which are made by the government based on the specific economic ideals and purposes in order to regulate the practical industries, and it is equal to the industry policy law in such meaning. The industry law has grown from the industry policy through legislated procedure, but this transition must meet for the specific conditions both in the object and procedure. Competition policy refers to the regulation on the market competition made by the government based on some economic purposes especially on the industrial purposes. It includes encouragement and promotion, but the limitation is the majority. Therefore, competition policy is absolutely different from the competition law which takes protecting the free and abundant competition as its dominant purpose. Competition policy is the mutual zone between industry law and competition law. But such difference doesn’t exist between the international competition law and international competition policy, both of which are the regulation supplied in the international degree in order to protect, promote and guarantee the free competition.The conflicts between the industry law and competition law in the economic practice are reflected in three aspects: the impose on the will of market competition by the will of industry of government; the“empire”ruled by industry policy through the“exceptional articles”; the bad recycle by the wrong use of will of industry policy and industry policy law. The reasons for these conflicts are: the ideals and action of old policies and regulations still rule in many fields; the contemporary society faces the imposed affection; the path dependence made by old systems and benefits; the lack of many necessary regulations.The theoretical bases for the functional coordination between industry law and competition law can be understood in two aspects: the one is from the retrospect toward the division theory of the legal parts. The objective connection between industry law and competition law has been cut off by such traditional theory, so the functional coordination between the two laws is imperative to realize the scientific division among different laws. The other is from the view of the abstract theory of the functional coordination among laws. We can find that the functional coordination between industry law and competition law not only meets for the needs of the common theory, but is the objective requirement for the economic practice. The functional coordination between industry law and competition law has the significant meanings to the practice: for one thing, it can form and promote the competitive power of the national economy; for another, it can accelerate and guarantee the social competitive power.The basic fracture of the functional coordination between industrial law and competition law includes four aspects: ideal, principle, degree and institution. Firstly, we should change the traditional recognition in the ideal that the coordination between the two laws shouldn’t be only limited in the“rectifying mutual faults”, but realize that they coexist in the society and economy. Secondly, the principles include three aspects: to deal with the relation between the natural and constructive characteristics reasonably; to divide the concrete degrees reasonably; to deal with the relation between the domestic and international characteristics reasonably. Thirdly, the coordination should be reflected in three aspects: ideal, regulation and practice. Finally, the functional coordination needs a positive and active institution, which includes the right approaches and the concrete legal systems.Under the economic background in china, the common systems of coordination should be arranged in different orders and degrees. Firstly, to open the domestic market in deeper degree,; give in the card system and so on in order to create a better environment for market subjects to invest. Secondly, to break up the monopoly situation of the big enterprises and meantime, open market in special industries bravely in order to realize complete competition in such places. Finally, to accelerate the revolution of the company governance for the big enterprises in order to realize the change in their structure of stock and investment.更多还原