摘要
"经营者"是个贯穿《反垄断法》始终的概念,是该法规制的主要主体。《反垄断法》虽然对该概念进行了界定,但是该界定实际上借用了《民法通则》和《公司法》等法律及执法实践中形成的传统的法人、自然人和其他团体的概念。由于《反垄断法》的立法宗旨和执法目标实质区别于以上法律,造成了经营者的概念在下位立法和执法实践中的不一致和混淆。该不一致不仅体现在各竞争执法机构立法与执法实践的差异上,还体现在相同竞争执法机构在立法和执法层面的不同中。因此存在从立法和执法层面将经营者概念统一化的现实需要。本文旨在概括性分析《反垄断法》中的经营者概念,力求从不同层面实现经营者概念的统一,从而避免实践中混淆适用的解决方案。
Operator'is a concept that runs through the Anti-Monopoly Law(AML), and is the major party that such regulates. The AML provides the defi nition of Operator; however such defi nition has borrowed the concepts such as legal person, natural person and other institutions as provided in other laws such as the General Provisions of Civil Law and Company law, and formed in the law enforcement practice of such laws. Substantial differences between the AML and the other laws mentioned above in terms of legislative purpose and aim of enforcement have caused inconsistency and confusion about the defi nition of Operator in the lower-level legislation and enforcement practices under the AML. Such inconsistency has manifested not only by the differences between the legislative and enforcement practices of authorities enforcing the AML, but also by such differences within a certain such authority. Therefore, it is necessary to unify the defi nition of Operator at both legislation and enforcement practice levels. This article has been drafted in order to provide a general analysis as to the concept of Operator under the AML as well as to provide a solution to unify such concept both in terms of legislation and law enforcement practice so as to avoid confusion in practice.
出处
《竞争政策研究》
2015年第1期66-70,共5页
Competition Policy Research
关键词
反垄断法
经营者
概念统一
Anti-Monopoly Law
operator
unifi cation of concept
