论竞争法中一般条款的地位--以一般条款的特性为中心

竞争法的规范性条款包括两类:列举条款和一般条款。成文法无法做到毫无遗漏地列举各种不正当行为,为弥补这种列举之不足,克服竞争法规范的不周延性和滞后性,设置一般条款是被证实并被各国广泛运用的最有效的方法。因此,一般条款在竞争法中被赋予特殊的地位及职能。一般条款的地位、职能、影响等外部状态取决于其内在的本质属性。只有揭示出一般条款的本质属性才能准确地把握其外部状态,进而完整地认识竞争法的特殊控制机制。

On the Status of General Provision of Competition Law--Taking Characteristics of General Provision as the Core

The normative provisions of Competition Law can be categorized as enumerated clauses and general clauses. As is known, statute law can't enumerate completely all improper acts beyond doubts. Therefore, working out general clauses has been widely applied in many countries and verified to be the most efficient approach to remedy the shortage of enumeration and overcome the incomplete and lagging character of the norm of Competition Law. As a result, the general clauses have been endowed with specific status and function in Competition Law. The outer factors of general clauses such as status, function, influence and so on are decided by its inner intrinsic attributes. So not until the intrinsic attributes of general clauses are revealed, can their outer factors be grasped accurately and the special control mechanism of Competition Law be further recognized.