【作者】 胡宇清；

【导师】 陈乃新；

【作者基本信息】 湘潭大学 ， 经济法学， 2007， 硕士

【摘要】 权利一直是法学研究的核心问题。竞争法作为经济法的重要组成部分,也将市场竞争权的研究作为核心内容。虽然,学界对于竞争法的研究已是硕果累累,但是,对于市场竞争权的研究却乏善可陈。正是在这种背景下,本文以马克思主义理论作为研究进路,深入分析了市场竞争权产生的经济和法律基础,指出市场竞争权是一项以劳动力权为基础的应有权利,应当尽快上升为法律权利得到法律保护。市场竞争权是指经营者在平等较量的基础上,凭借自身劳动能力获取利润的权利。论证市场竞争权是一项独立的法律权利,首先必须理解市场竞争关系。本文通过对市场竞争关系的分析,提出了市场竞争关系是一种以劳动能力为基础、以争夺利润为核心的经济关系的新观点。这种新的经济关系必然要求新的法权与之相适应,市场竞争权就是这种新经济关系的产物。其次,本文通过对市场竞争权的合法性分析,认为市场竞争权完全符合权利构成的五大要素,可以成为一项法律权利,并且有坚实的权利来源——劳动力权。最后,本文论证了市场竞争权的独立性。指出市场竞争权的主体是市场经营者,具有特定性;客体是利润,是一种增量利益;权能有自由参加权、自由竞争权、机会平等权、受平等对待权、请求国家保障权、失败救济权六项。主体、客体和权能与其他权利有根本区别,因而具有独立性。权利必有救济,没有救济的权利形同虚设。市场竞争权作为经营者最重要的经济权利,更加必须对其进行完善的保护。首先要从法律上明确确认经营者享有市场竞争权,其次设立独立的权威性机关对其进行保护,最后也是最重要的就是建立“反不正当竞争诉讼”对市场竞争权进行司法保护。更多还原

【Abstract】 Right is all along the core issue of law research. The research of market competition right is becoming the core content of competition law, which is the important part in economic law. Despite the research of competition law has got a great achievement in academe, there are few researches on market competition right.Just with this background, the article takes Marxism theory as the orientation of research, to go deep into analyzing the basic of economy and law that has produced the market competition right, and points out that market competition right is a due right based on the right of labor power, so it ought to become a legal right to be protected by the law as soon as possible.The market competition right is the right of the business operators to get profits by right of their own labor power in the fair competition. To prove the market competition right is an independent legal right, what should first do is to understand the market competition relations. Through analyzing the market competition relations, this article proposes a new viewpoint that the market competition relation is an economic relation which basis is the labor ability and which core is competing for profits. There should be a new legal right to adapt to this kind of new economic relationship. The market competition right is just the result of the new relationship. The second, through the analysis of the market competition right, this article maintains that the market competition right completely conforms to five essential factors of the right constitution, so it may become a legal right, and it has the solid right source——the right of labor power.Finally, the article demonstrates the independence of the market competition right, and points out that the subject of market competition right is the market operators so it is specific. The object is profit that is a kind of incremental benefits. The capacity contains six parts that are the free attending right, the free competition right, the equal opportunity right, the equal treatment right, the right to seek equal legal protection, and the remedial right for loss. The subject, the object and the capacity are different from those of other rights fundamentally, so the market competition right is independent.The right should include remedy. The right without remedy is in name only. As the most important economical right of the business operators, the market competition right should be protected more perfectly. First of all, it should be confirmed explicitly that the operators enjoy the market competition right in the law. Secondly, an independent authority institution should be set up to protect it. Finally, it is the most important to establish the“litigation against unfair competition”to carry on the judicial protection for the market competition right.更多还原