垄断协议认定权及其相关问题研究

垄断协议认定具有公法性处理与私法性救济二重属性。我国《反垄断法》仅从公法性处理的角度进行了规定,但垄断协议本身具有的平等主体间可以设定民事权利义务的民商事协议性质,必然产生《反垄断法》与《合同法》、《仲裁法》等私法救济性法律的关系问题,也会产生反垄断执法机构与裁判机构的关系问题,进而言之,是行政执法权与法律适用权之间的合理有效配置问题。对于这些问题在现阶段,垄断协议认定权可以因不同启动原因而分别由反垄断执法机构与裁判机构享有,而垄断协议的豁免权则应该为反垄断执法机构来行使。

On the Cognizance Right and Related Issues Concerning Monopoly Agreement

The cognizance of monopoly agreement bears the characteristics of both public law and private law.Nevertheless,the Antimonopoly Law of our country only regulates it from the angle of public law,irrespective of the character of the agreement as civil or commercial contract by which the equal parties are able to create civil rights and obligation.It gives rise to the issues on the relationship between Antimonopoly Law and some of the private laws such as Contract Law and Arbitrage Law which are concerned about private relief,and the relationship between antimonopoly enforcement authorities and judgment organizations.At one time,it can be deemed an issue on how to effectively allocate the administrative power of enforcement and the right to apply law.The point of view to these issues is: on present phase,considering that the start of a motion concerning the monopoly agreement may be based on different reasons,the cognizance right concerning monopoly agreement shall be obtained by both antimonopoly enforcement authorities and judgment organizations.However,the exemption right concerning the monopoly agreement shall fall within the discretion of antimonopoly enforcement authorities only.