China: 建立公平竞争审查制度,从源头遏制行政垄断

Last Updated: 3 March 2017
Article by Dentons  

建立公平竞争审查制度,从源头遏制行政垄断

2016-06-27 反垄断实务评论 作者:大成反垄断团队

2016年6月14日,国务院正式发布《国务院关于在市场体系建设中建立公平竞争审查制度的意见》(以下简称"《意见》"),在全国范围内建立公平竞争审查制度。《意见》强调,公平竞争审查制度针对地方保护、区域封锁,行业壁垒、企业垄断,违法给予优惠政策或减损市场主体利益等不符合建设全国统一市场和公平竞争的现象,要求各级政府对全部规范性文件进行事先的"自我审查",确保有关政府文件符合以《反垄断法》为核心的公平竞争准则。

这一制度至少有四个层面的显著意义:一、表明中央政府重视公平竞争市场秩序、深化市场经济改革的决心;二、中国显示了对于竞争政策的重视态度,产业政策的重要性相对下降;三、《反垄断法》实施八年之后,有望迎来进一步加强执法的积极态势;四、对于政府规范性文件'事先审查'的制度设计,堪称前所未有。

中共十八届三中全会明确提出"使市场在资源配置中起决定性作用"。竞争是市场经济的核心,建立公平竞争审查制度,在制度层面凸显了中国对竞争政策的重视,也是政府进一步简政放权,深化市场经济改革的具体措施,对提高全社会尤其是各级政府及所属部门工作人员的公平竞争意识,规范政府行政行为,防止对市场的过度、不当干预,维护市场公平竞争环境,促进市场持续健康发展具有重大意义。从这个意义上说,公平竞争审查制度的首要目标,正是广受诟病的行政垄断行为。

与公平竞争审查制度类似,澳大利亚、韩国等市场经济较为成熟的国家,建立了卓有成效的竞争评估制度。澳大利亚自1995年开始对所有法律进行竞争评估,之后十年中共发现了一千八百多项限制竞争的法律规则,并对其中的85%进行了修改或废止。韩国自2009年起建立了专门的竞争评估制度,仅在当年,韩国公平交易委员会(KFTC)就发现了1400多项限制竞争的法规,并就其中的800多项与相关部门达成修改共识。[1]

根据《意见》的规定,我国的公平竞争审查主要还是采取各级政府部门"自我审查"的模式。鉴于我国地域辽阔,各级政府部门出台的政策更是浩繁复杂,采取此种模式有利于分担审查负担,提高政策出台效率,及时应对风云变幻的市场环境。但是,"自我审查"的模式也可能会面临一些现实问题,如具体的政府部门工作人员专业性不足,外部监督乏力,不具集约性等等。

经济合作与发展组织(OECD)曾专门颁布《竞争评估工具书》,其中最主要的内容是竞争核对清单,该清单可用来判断法律法规是否对竞争有潜在限制作用,使有限的资源可用于最需要进行竞争评估的领域。[2]与此类似,《意见》规定了市场准入标准、商品和要素自由流动标准等四项审查标准,并详细列举了包含十八项"不得"的"负面清单",除此以外,《意见》还规定了"兜底条款",即"没有法律、法规依据,各地区、各部门不得制定减损市场主体合法权益或者增加其义务的政策措施;不得违反《中华人民共和国反垄断法》,制定含有排除、限制竞争内容的政策措施。""负面清单"所采取的详细列举的模式,有利于各级政府部门工作人员较为便捷地对比比较,对有违公平竞争原则的条款进行快速识别。

我国《反垄断法》明确禁止滥用行政权力排除、限制竞争行为(行政垄断)。权力具有天然的向外扩张的倾向,行政垄断即是源于政府权力对市场的过度、不当干预。千百年来,我国政府权力有着对经济进行干预的传统,因而,如何转变思维,规范政府权力行使,防止权力滥用对竞争环境产生负面影响,道路且长。

当前,对于行政垄断的规制主要还是依靠"事后监督"模式。

《反垄断法》采用专章详细规定了行政垄断的具体表现形式,但反垄断执法机构对行政垄断的查处权限却很有限。根据《反垄断法》第五十一条的规定,对于行政垄断行为,反垄断执法机构并没有直接进行处罚的权力,只是有向有关上级机构提出依法处理的"建议权"。如此,也在一定程度上体现了单纯依靠《反垄断法》对行政垄断进行规制的局限性。

2015年新修订实施的《行政诉讼法》第十二条明确将"行政机关滥用行政权力排除或者限制竞争的"行为纳入受案范围,第二条亦改变了原有仅限"具体行政行为"的模式,这为未来行政垄断,尤其是抽象行政垄断行为的司法审查奠定了法律基础。

行政垄断多以"红头文件"这类抽象行政行为的形式进行地区封锁、地方保护、强制交易等,从这个意义上讲,公平竞争审查制度主要是"事前预防",恰是在源头上着力对行政垄断进行遏制。除了对现存的政策对照公平竞争审查标准进行审查之外,更主要的是建立常态机制,对今后制定的政策进行公平竞争审查,"没有进行公平竞争审查的,不得出台"。

毋庸置疑,公平竞争审查制度的作用绝不仅限于从源头遏制行政垄断,其建立、实施与完善必将对我国社会主义市场经济的发展产生重大影响。从某种角度而言,公平竞争审查制度的建立,含有在竞争法领域建立'违宪审查制度'的萌芽。在未来,公平竞争审查制度是否能够进一步上升到《立法法》、《反垄断法》等法律层面,值得期待。

注释:

1.张占江:《中国法律竞争评估制度的构建》,载《法学》2015年第4期。

2.经济合作与发展组织:《竞争评估工具书》,https://www.oecd.org/daf/competition/98765437.pdf  

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