【作者】 杨青；

【导师】 张旻昊；

【作者基本信息】 山东大学 ， 民商法学， 2013， 硕士

【摘要】 市场规制法体系问题是经济法领域的核心问题之一,我国理论界对市场规制体系的构成众说纷纭,对市场规制法体系研究较少,多散见在宏观总体研究中,市场规制法体系构建理论薄弱。与此同时,在现实构建中存在立法和执法两方面问题：立法上法律规范之间协调性差,程序性规范和部分实体规范缺失；执法上执法理念和目标与现实脱节,市场规制主体多元、机构设置重叠、职权不清,市场规制执法程序规范化不足、风险救济途径单一等等,这些现状表明构建和完善我国市场规制法体系刻不容缓。市场规制法体系形成的社会经济基础是相似的,美德两国及其他资本主义国家为解决市场失灵问题制定了一系列规制市场的法律法规,促进了市场规制法体系的形成。我国当前面临的市场失灵问题以及针对市场失灵而颁布的一系列法律法规也为我国市场规制法体系的构建和完善提供了社会经济基础。“凯恩斯主义”理论以及美国等西方国家政府运用公权干预经济取得成效的实践为我国政府干预经济提供了合理性基础。国家干预经济的权力是宪法赋予的,我国宪法关于国家管理经济的规定为我国政府干预经济提供了合法性基础。市场规制法体系构建和完善主要受到三个因素的影响：市场规制法调整范围的确定、市场规制法立法模式以及市场规制法执法模式。市场主体从进入市场到退出以及在这个过程中所进行的一系列行为都有可能破坏市场秩序,应受到市场规制法的调整。在这个过程中主要涉及市场准入与市场退出关系、竞争维护关系、产品质量关系以及消费者权益保护关系。市场准入与市场退出涉及到市场主体资格的得失,是市场规制的源头。竞争行为贯穿整个市场活动,是市场规制的核心。产品质量是市场规制的结果,是市场竞争行为的延伸。消费者是最重要的市场参与者,维护消费者权益涉及社会公平。上述四种关系具有广泛性,在对其进行规制的过程中所遵循的一般规则就是一般市场规制法。此外,市场规制法还对许多特殊关系进行调整,固化为法律规范就是特殊市场规制法。市场规制法立法模式是市场规制法的表征样态,是构建市场规制法体系的基石。我国应结合当前立法情况,采取一般市场规制法与特殊市场规制法分立的单行法模式。市场规制法执法模式影响立法偏好进而影响市场规制法体系的构建,我国宜在当前以行政控制为主、司法控制为辅的情况下,加强司法控制,完善司法控制手段和司法救济途径。根据前述分析,我国应构建一般市场规制法与特殊市场规制法分立的市场规制法体系。一般市场规制法体系应包括：市场准入与市场退出法、反垄断法、反不正当竞争法、产品质量法以及消费者权益保护法等。特殊市场规制法的体系应该是建立在一般市场规制法基础上的涵括房地产市场规制法、金融市场规制法、自然垄断市场规制法以及食品药品市场规制法等动态开放的体系。一般市场规制法体系与特殊市场规制法体系都是动态开放的,要根据客观情况及时进行调整。为了构建和完善我国市场规制法体系,我们应做好立法和执法两方面工作。立法方面要本着突出一般市场规制法和强化特殊市场规制法的原则针对我国立法存在的问题做好以下工作：加强市场规制立法的协调性,对于法律冲突事前要避免、事后要解决；加强立法,补充完善市场规制法内容尤其是市场退出法。执法方面要更新执法理念、恪守“守夜人”职责,合理配置执法机构权限、建立执法协调机制,规范执法程序,促进执法公开化、透明化,加强执法监督,扩充救济途径。市场规制法体系构建研究能够科学预测和合理规划立法,尽可能减少未来中国市场规制法律规范冲突的产生,从而构建和完善中国市场规制法体系,更好地保障公平自由的市场经济秩序,有着重要的理论和现实意义。在研究方法上,本文主要采用文献研究和比较分析的方法。作为经济法基础理论一部分的市场规制法体系探究是一项庞大的系统工程,本文的考察只能算是一个论纲性的尝试。更多还原

【Abstract】 Market regulation law system is one of the core issues in the field of economic law. For the formation of market regulation system, there are various opinions in the theoretical circle in china. The study on the market regulation law system is less, and more is scattered in the macro overall study. The construction theory of the market regulation law system is weak. At the same time, in the process of its real construction, it is faced with two aspects of problems:poor coordination between legal norms and lack of procedural norms and partial entity norms in the legislation; the losing touch of the ideas and goals of the law enforcement with reality. the diversity of market subject, the overlapping of institutional Settings, the vague function and power of government, the lack of standardization, the singleness of relief way and so on. The current situation shows that it is urgent to build and perfect the market regulation law system in our country.The formation of the market regulation law system has similar social and economic infrastructure. America and Germany as well as other capitalist countries have developed a series of market regulatory laws and regulations to solve the problem of market failures, which promotes the formation of the market regulation law system.China is currently facing the problem of market failure and has promulgated a series of laws and regulations for it. All of that provides a social and economic infrastructure for the construction and improvement of the market regulation law system. Keynesian theory as well as the successful practice that the governments in the United States and other Western countries have given effective intervention in the economy using public rights have provide a reasonable basis for our government’s intervention in the economy. The power of state intervention in the economy is conferred by the Constitution, and the provisions of our Constitution on state-managed economy, has provided legitimacy basis for our government’s intervention in the economy.The construction and improvement of market regulation law system is mainly influenced by three factors:the determination of the adjustment range of market regulation law, the legislative model and law enforcement model of the market regulation law. The main market players from entering to exiting the market as well as their series of acts carried out in the process are likely to disrupt the market order. They should be subject to the adjustment of the Market Regulation Law. In this process, it is mainly related to the relations between market access and market exit, the maintenance of competition relationships, the relationship of product quality as well as the relationship of the protection of consumers’ rights and interests. The access or exit of market related to the gaining or losing of the qualifications of the main market player, and it is the source of the market regulation. Competitive behavior which is the core of market regulation, exist throughout the market activity. Product quality is the result of market regulation, and also an extension of the market-competitive behavior. The consumer is the most important market participants, and the protection of consumers’ rights and interests involves social equity. As these four relationships have universality, we should follow the general market regulation law which is the general rule in its regulatory process. Market Regulation Law also adjusted many of special relationships, which is known as special market regulation law. The legislative model of market regulation law is the superficial characteristics of market regulation law, it is the footstone of the system of market regulation law. China should take the current legislation situation into account and adopt a discrete mode that general market regulation law and special market regulation law should be carried out separately. The enforcement mode of Market Regulation Law influence legislation preference thereby affecting the construction of market regulation law system. Therefore China should mainly depend on administrative control and take judicial control as a supplement in the current. Moreover, we need to strengthen judicial control and improve the means of judicial control and the way of judicial remedies.Based on the foregoing analysis, china should build a system of Market Regulation Law with the separation of General Market Regulation Law and the Special Market Regulation Law. General market regulation law system should include market access and market exit law, anti-monopoly law, the Anti-Unfair Competition Law, the Product Quality Law and the Law on the Protection of Consumers’ Rights and Interests. Special market regulation law system which is a dynamic and open system should be built on the basis of the general market regulation law, covering real estate market regulation law, financial market regulation law, natural monopolies Market Regulation Law and the Food and Drug Market Regulation Law. Both of them are dynamic and open systems, and need timely adjustment according to the objective situation.In order to build and improve the system of China’s Market Regulation Law, we should do the work of legislation and enforcement well. The legislation work should be based on the principle that to emphasize general market regulation law and to strengthen the Special Market Regulation Law. Aiming at solve the problems that exists in China, we should do the following works well. We need to strengthen the coordination of market regulation legislation and try our best to avoid the conflict of laws in advance and to solve it once it occurs. Besides, we need to strengthen legislation, and supplement and improve the content of the Market Regulation Law, especially market exit law. What’s more, we should update the idea of law enforcement and abide by the duties of the "night watchman".we also need to have a reasonable configuration of enforcement power and establish a coordination mechanism to regulate law enforcement procedures as well as promote enforcement openness and transparency.It is also necessary to strengthen the supervision of law enforcement and increase the way for relief.The study on Market Regulation Law System can make us have scientific predictions and reasonable planning in legislation process and minimize conflicts about regulation laws in future China market.It will help us to build and improve market regulation law system and protect the fair and free market economic order better. Therefore, it has an important theoretical and practical significance. For research methods, this paper mainly adopts literature research and comparative analysis. As part of the basic theory of economic law, market regulation law system is a huge project, the investigation of this paper can only be regarded as an Outline of the attempt.更多还原