論歐美反壟斷群體訴訟制度及其對我國的啟示
發(fā)布時間：2019-04-21 21:01
【摘要】：一百多年的反壟斷實踐證明,作為“經(jīng)濟憲法”,反壟斷法的有效實施對國家的發(fā)展與市場經(jīng)濟的維護具有無比重要的作用�！巴椒ú蛔阋宰孕小�,要充分發(fā)揮反壟斷法的作用,不僅需要一部完善的反壟斷法律,更需要行之有效的反壟斷執(zhí)行措施。只有當公共執(zhí)行與私人執(zhí)行共同作用,服務于反壟斷法的執(zhí)行,才能夠發(fā)揮反壟斷法的目的與效果。隨著反壟斷法在我國的實施,反壟斷民事訴訟將成為法院新審判領域,反壟斷群體訴訟也將逐漸增多。在一些情況下,壟斷行為的受害者人數(shù)眾多,因而總體損害巨大,但是每一個個體的受害者,單獨起訴缺乏動力,受害者的權益得不到保護。此時提起群體訴訟可以激勵與推動起訴,保護每個受損者的利益,維護市場的公平競爭。然而,我國的群體訴訟制度并不完善,借鑒美國與歐盟的成功經(jīng)驗和建議對我國反壟斷法全面實施具有重要意義。本文旨在結合我國群體訴訟制度的現(xiàn)狀,通過借鑒美國集團訴訟以及歐盟構建反壟斷群體訴訟的構想與嘗試,對構建我國反壟斷群體訴訟制度提出相應的建議。 本論文分為六個部分,各部分主要內(nèi)容如下: 前言主要介紹了本文的寫作動機和寫作目的。 第一章介紹反壟斷私人執(zhí)行制度與反壟斷群體訴訟,以期為下文的敘述做好鋪墊。第一節(jié)為反壟斷私人執(zhí)行制度的概述,主要介紹反壟斷私人執(zhí)行與公共執(zhí)行、集中型私人執(zhí)行制度與分散型私人執(zhí)行制度,并對美國私人執(zhí)行制度、歐盟私人執(zhí)行制度的立法與實踐以及我國的反壟斷私人執(zhí)行進行簡要介紹。第二節(jié)著重介紹反壟斷群體訴訟制度,并分析討論反壟斷私人執(zhí)行制度中與群體訴訟相關的四個因素,包括賠償數(shù)額的確定、風險代理收費、證據(jù)開示制度、訴訟費的收取。 第二章主要介紹美國反壟斷集團訴訟。第一節(jié)介紹美國集團訴訟的概念、構成條件、歷史沿革以及集團訴訟的立法目的,同時討論集團訴訟存在的問題與爭議,以其為比較和借鑒美國反壟斷集團訴訟做好鋪墊;第二節(jié)介紹美國反壟斷集團訴訟的概念和適用條件,反壟斷集團訴訟在美國的興衰,并簡要討論針對美國反壟斷集團訴訟的主要批評。 第三章主要介紹歐盟在構建與完善反壟斷群體訴訟制度方面的經(jīng)驗與借鑒。第一節(jié)介紹歐盟反壟斷群體訴訟制度概況,包括歐盟層面與成員國層面兩個方面。第二節(jié)著重介紹歐盟2005年綠皮書與2008年白皮書中有關構建群體訴訟的建議,特別是2008年白皮書中所提出的團體代表訴訟與“選擇性加入”集團訴訟這兩種群體訴訟方式。第三節(jié)討論白皮書中針對群體訴訟的建議所存在的不足。 第四章主要提出有關完善我國反壟斷群體訴訟制度的建議。第一節(jié)介紹我國群體訴訟現(xiàn)狀。第二節(jié)提出有關完善我國反壟斷群體訴訟制度的建議。短期建議包括通過最高法院的司法解釋對有關反壟斷代表人訴訟制度進行構建和完善;賦予法院更加積極的作用;加強律師在反壟斷代表人訴訟制度中的作用;完善訴訟擔當制度,發(fā)展團體訴權,即賦予某些團體訴權,由他們代表權利人提起訴訟。長期建議包括構建與完善相關法律規(guī)定;反壟斷群體訴訟由中級人民法院以上人民法院管轄;完善程序正當化機制,如原告的退出權、充分代表權和通知制度等;進行訴訟費用改革;賠償制度的修改與完善;完善證據(jù)開示制度,私人執(zhí)行可直接援引公共執(zhí)行確定的證據(jù)。 在結論部分中作者對本文的主要觀點做了總結,并對各章節(jié)所討論的主要問題提出了針對性的論點。
[Abstract]:The anti-monopoly practice of more than one hundred years has proved that as a "economic constitution", the effective implementation of the anti-monopoly law has an important role in the development of the country and the maintenance of the market economy. "The method is not sufficient for itself", to give full play to the role of anti-monopoly law, not only need a perfect anti-monopoly law, but also need effective anti-monopoly enforcement measures. The purpose and effect of the anti-monopoly law can only be played when the public implementation and the private execution act together and the service is in the enforcement of the anti-monopoly law. With the implementation of the anti-monopoly law in our country, the anti-monopoly civil action will become the new trial area of the court, and the anti-monopoly group lawsuit will gradually increase. In some cases, the number of victims of a monopoly act is so large that the overall damage is enormous, but the victim of each individual, individual prosecution of a lack of power, the rights and interests of the victims are not protected. At this time, the prosecution of the group can stimulate and promote the prosecution, protect the interests of each of the injured, and maintain the fair competition in the market. However, it is of great significance to draw on the successful experiences and suggestions of the United States and the European Union for the full implementation of the anti-monopoly law in our country. The purpose of this paper is to put forward corresponding suggestions on the construction of the anti-monopoly group lawsuit system in our country by reference to the current situation of the group lawsuit system of our country, by using the American Group's lawsuit and the idea and attempt of the EU to build the anti-monopoly group lawsuit. The thesis is divided into six parts, the main contents of each part The following: The preface mainly introduces the writing motivation of this paper The first chapter introduces the anti-monopoly private execution system and the anti-monopoly group lawsuit, in order to The first part is an overview of the anti-monopoly private execution system, mainly introduces the private enforcement and public execution of the anti-monopoly, the centralized private execution system and the decentralized private execution system, and also The American Private Execution System, the Legislation and Practice of the European Union's Private Implementation System and the Anti-monopoly Private System in China The second section mainly introduces the anti-monopoly group litigation system, and analyzes the four factors related to the group lawsuit in the anti-monopoly private execution system, including the determination of the compensation amount, the risk agent charging and the evidence opening system. The charging of legal fees. The second chapter mainly The first section introduces the concept, composition, history and the legislative purpose of the Group's litigation, and discusses the problems and disputes in the group's litigation, so as to compare and draw on the United States. In the second section, the article introduces the concept and application of the action of the anti-monopoly group in the United States, the rise and fall of the anti-monopoly group in the United States, and briefly discusses the anti-monopoly group in the United States. The third chapter mainly introduces the construction and perfection of the anti-monopoly of the EU The first part introduces the general situation of the EU anti-monopoly group lawsuit system, which includes the following: Two aspects of the EU and the Member States. Section II focuses on the EU green paper for 2005 and the recommendations of the 2008 white paper on the construction of group litigation, in particular in the 2008 white paper, the group's representative actions and the "selective context" Group proceedings. Section III discusses the needle in the white paper The deficiencies in the recommendations of group-based litigation are the main points of the fourth chapter. On the Perfection of the System of the Anti-monopoly Group in China The first part introduces the present situation of the group litigation in our country. In order to perfect the system of the anti-monopoly group, the short-term suggestion includes the construction and improvement of the legal system of the anti-monopoly representative through the judicial interpretation of the Supreme Court, giving the court more active role, and strengthening the work of the lawyer in the legal system of the anti-monopoly representative. to use; to perfect the system of action and to develop a group's right of action, that is, to give some The right of a group to bring a suit on behalf of the obligee. The long-term recommendation includes the construction and improvement of the relevant legal provisions; the action of the anti-monopoly group shall be governed by the people's court above the intermediate people's court; the proper mechanism of the procedure is improved, such as the right of the plaintiff to withdraw, and the full generation The right and the notification system, etc.; the reform of the cost of the litigation; the modification and improvement of the compensation system; the improvement of the evidence opening system and the private property; In the conclusion part, the author sums up the main points of view and is
【學位授予單位】：中國政法大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D971.2;D95;D925.1
本文編號：2462551
[Abstract]:The anti-monopoly practice of more than one hundred years has proved that as a "economic constitution", the effective implementation of the anti-monopoly law has an important role in the development of the country and the maintenance of the market economy. "The method is not sufficient for itself", to give full play to the role of anti-monopoly law, not only need a perfect anti-monopoly law, but also need effective anti-monopoly enforcement measures. The purpose and effect of the anti-monopoly law can only be played when the public implementation and the private execution act together and the service is in the enforcement of the anti-monopoly law. With the implementation of the anti-monopoly law in our country, the anti-monopoly civil action will become the new trial area of the court, and the anti-monopoly group lawsuit will gradually increase. In some cases, the number of victims of a monopoly act is so large that the overall damage is enormous, but the victim of each individual, individual prosecution of a lack of power, the rights and interests of the victims are not protected. At this time, the prosecution of the group can stimulate and promote the prosecution, protect the interests of each of the injured, and maintain the fair competition in the market. However, it is of great significance to draw on the successful experiences and suggestions of the United States and the European Union for the full implementation of the anti-monopoly law in our country. The purpose of this paper is to put forward corresponding suggestions on the construction of the anti-monopoly group lawsuit system in our country by reference to the current situation of the group lawsuit system of our country, by using the American Group's lawsuit and the idea and attempt of the EU to build the anti-monopoly group lawsuit. The thesis is divided into six parts, the main contents of each part The following: The preface mainly introduces the writing motivation of this paper The first chapter introduces the anti-monopoly private execution system and the anti-monopoly group lawsuit, in order to The first part is an overview of the anti-monopoly private execution system, mainly introduces the private enforcement and public execution of the anti-monopoly, the centralized private execution system and the decentralized private execution system, and also The American Private Execution System, the Legislation and Practice of the European Union's Private Implementation System and the Anti-monopoly Private System in China The second section mainly introduces the anti-monopoly group litigation system, and analyzes the four factors related to the group lawsuit in the anti-monopoly private execution system, including the determination of the compensation amount, the risk agent charging and the evidence opening system. The charging of legal fees. The second chapter mainly The first section introduces the concept, composition, history and the legislative purpose of the Group's litigation, and discusses the problems and disputes in the group's litigation, so as to compare and draw on the United States. In the second section, the article introduces the concept and application of the action of the anti-monopoly group in the United States, the rise and fall of the anti-monopoly group in the United States, and briefly discusses the anti-monopoly group in the United States. The third chapter mainly introduces the construction and perfection of the anti-monopoly of the EU The first part introduces the general situation of the EU anti-monopoly group lawsuit system, which includes the following: Two aspects of the EU and the Member States. Section II focuses on the EU green paper for 2005 and the recommendations of the 2008 white paper on the construction of group litigation, in particular in the 2008 white paper, the group's representative actions and the "selective context" Group proceedings. Section III discusses the needle in the white paper The deficiencies in the recommendations of group-based litigation are the main points of the fourth chapter. On the Perfection of the System of the Anti-monopoly Group in China The first part introduces the present situation of the group litigation in our country. In order to perfect the system of the anti-monopoly group, the short-term suggestion includes the construction and improvement of the legal system of the anti-monopoly representative through the judicial interpretation of the Supreme Court, giving the court more active role, and strengthening the work of the lawyer in the legal system of the anti-monopoly representative. to use; to perfect the system of action and to develop a group's right of action, that is, to give some The right of a group to bring a suit on behalf of the obligee. The long-term recommendation includes the construction and improvement of the relevant legal provisions; the action of the anti-monopoly group shall be governed by the people's court above the intermediate people's court; the proper mechanism of the procedure is improved, such as the right of the plaintiff to withdraw, and the full generation The right and the notification system, etc.; the reform of the cost of the litigation; the modification and improvement of the compensation system; the improvement of the evidence opening system and the private property; In the conclusion part, the author sums up the main points of view and is
【學位授予單位】：中國政法大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D971.2;D95;D925.1
【參考文獻】
相關期刊論文 前1條
1 沈志韜;;從國際經(jīng)驗看中國反壟斷私人執(zhí)行制度的建立[J];世界貿(mào)易組織動態(tài)與研究;2010年03期
，本文編號：2462551
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