我国对外贸易反垄断豁免失当性分析及其完善

我国《反垄断法》第15条规定的对外贸易豁免包括进口豁免和出口豁免。进口卡特尔豁免的基础系竞争者保护优先于竞争保护，其不利于我国当前及未来进口产业的竞争力提高，并有可能违反WTO国民待遇原则，应予以禁止适用。我国出口的卡特尔豁免规定虽具一定合理性，但必须对其中的“正当利益”豁免要件进行限缩性解释，防止对此条款的滥用并引起不必要的损害。

The Analysis and Improvement on the Invalidity of the Exemption from the Antimonopoly of the Foreign Trade in China

Article 15 in Antimonopoly Law of China provides that the exemption from the foreign trade includes the exemption from im?port and export. The basis of the exemption from import cartel is that the protection of competitor is prior to the protection of competi?tion, which is adverse to the competition ability promotion of Chinese import industry at present and in the future and may be contrary to the National Treatment of WTO, and it should be prohibited. The regulation of export cartel of China is reasonable in some degree, however, the constitutive requirement of “just benefit” exemption should be explained in restriction so that the abuse of the regulation is prevented to cause unnecessary harm.