摘要
在反补贴案件中,私人投资基准是判定政府投资是否带给企业以补贴利益的标准。在具体选择私人投资基准时,不宜设置股权比例的限制,也不可选择囿于沉没成本效应的内部投资者价格,更不应采用容易异化为贸易保护的结构价格。若无私人投资价格,可转而审查政府投资是否基于商业动机,但投资动机的举证责任由被调查方承担。符合关联性、中立性、逻辑性、专业性四项要求,由会计师事务所等专业机构出具的报告,是商业动机的首选证据。
Legally definitional criteria of subsidy, which require a finding of a financial contribution by agovernment actor and a benefit subsequently conferred,are employed in the SCM Agreement of the WTO.Compared with the concept of a financial contribution which is amplified by four explanatory sub-paragraphs,the content of benefit seems more unclear and controversial when it comes to the details.Although the Appellate Body confirmed the Panel＇s finding in Canada-Aircraft that a″benefit″would only be conferred if a financial contribution was provided on terms that are more advantageous than those that would have been available to the recipient on the commercial market,along with Article 14 which constitutes relevant context for the interpretation of″benefit,″the concept of a benefit remains ambiguous especially in complex disputes where the″commercial market″is not easily identifiable.Government provision of equity capital is one typical type of such financial contributions.According to Article 14（a）of the SCM Agreement,usual investment practice of private investors is regarded as the benchmark for determining whether the subsidized benefit has been conferred by governmental equity infusion.The decision to make equity infusion depends,to a large extent,on personal subjective judgment of each investor on the future. Therefore,the benchmark of usual investment practice of private investors is quite flexible but still needs to be predictable as a legal norm.However,there are no provisions in the SCM Agreement regarding how to ascertain such usual investment practices of private investors in specific disputes.Meanwhile,the Dispute Settlement Body of WTO has established the basic frame for the benchmark of usual investment practice of private investors by means of making interpretations in some subsidy disputes.In Japan-DRAMs（Korea）,the panel and Appellate Body accept that two types of evidences are relevant in determining the existence of benefit：one is evidence of the terms that the market would ha
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2016年第5期198-208,共11页
Journal of Zhejiang University:Humanities and Social Sciences
基金
教育部人文社会科学研究青年基金项目(11YJC820042)
关键词
世贸组织
补贴
利益
私人投资基准
私人投资价格
商业动机
法解释学
法经济学
WTO
subsidy
benefit
benchmarks of private investor
private investor price
commercial consideration
hermeneutics of law
economics of law
