【作者】 潘丹丹；

【导师】 姚建宗；

【作者基本信息】 吉林大学 ， 法学理论， 2010， 博士

【摘要】 与其它的法律比较而言,反垄断法所具有的不确定性更为典型。文章改变以往仅从经济学进路和法学进路对不确定性进行研究的做法,从公共政策学的进路对此问题进行研究。这种研究路径的优势在于:第一,能够澄清反垄断法不确定性发生的中介机制——政策,即弹性的政策可以反映政治经济社会情势的变更,反垄断审判过程中,通过对政策的适用,最终做出切合实际的判决。由于政策传递了情势变更,所以反垄断法律的适用表现出结果的不确定性。第二,能够回应反垄断现实的复杂性,换句话说,可以透过政策背后的政治、经济、价值等因素看待反垄断法。因此反垄断法的不确定性更符合对反垄断案件具体情势的确切描述:政策导向背后的利益变动、政策导向背后的价值分析、政策导向背后的知识工具分析。可见,反垄断法不确定性的真正价值和意义是达致反垄断判决的合理性,但与之相应的风险是:反垄断法容易蜕变为反垄断政策、法治蜕变为人治。因此,对反垄断法的不确定性进行合理限制,就是要在法学理论层面澄清法律与政策的关系。根据“商谈论证理论”,通过给政策提供一个由限定的论证规则约束的论证程序,通过司法场域的限定和法律论证程序的制约,以保证政策对判决施以影响的程序确定性。这种理论表明,反垄断法不确定性的属性直接决定了未来反垄断法发展的程序主义倾向,反垄断法的未来一定不是实体规则的丰富和完善,而只会是程序规则的创新和丰富。只有这样才能保证:反垄断法的不确定性既可以达致合理性的要求,又可以通过论证程序的约束达致程序的确定性。更多还原

【Abstract】 In comparison with other law,the possession of the indeterminacy in Anti-trust law is more typical. Based on this typical indeterminacy, there is always doubt on the legitimacy of Anti- trust law. For this reason,it has the great theoretical and practical value to clarify the substance of Anti-trust indeterminacy and to scientificly understand the meaning of Anti-trust indeterminacy.The previous theory only from the dimension of the legal formalism "analysis on rules ", understood the indeterminacy of Anti-trust law, that is the uncertainty comes from the ambiguity of the rules. However, this understanding does not answer the complexity of the indeterminacy itself. On this basis, this paper argues that the dimension of the "interest analysis" and "value analysis" on the Anti-trust law will be applied to understand the indeterminacy. First,to understand the legal indeterminacy is to understand the prerequisite for the growth of social movements and the specific desires; Second, to understand the legal indeterminacy is to understand the different values of the legal participants. Once the awareness of Anti-trust law indeterminacy in such a perspective, the indeterminacy of the substance of Anti-trust law will be able to show. Anti-monopoly only means that the balance of the view on the democratic power politics and the populist power politics,the balance of the liberalism values and the communitarianism values and the choice of the knowledge of the the market rationality and the knowledge of the the government rationality.It is necessary to take the complexity of the situation into account when Anti-trust law is going to make institutional arrangements.So the Anti-trust law must built up the strain of various interests, various values and various choices of knowledge. This respect for the complex reality of the situation results in that the Anti-trust law is not just a one-sided normative system upholding the value of a single theory,but it is a more pluralistic, open and indeterminate system of normative system. In this sense, the Anti-trust law has the policy-oriented character. The policy-oriented character of Anti-trust law ensures the full complexity of the case and more accurately describes the occurrence of the complexity of the Anti-trust case: 1、the change in interests behind the policy orientation. This inspired us to pay attention not only to policy makers– government agencies on behalf of national interests but also to the role of interest groups.The difference of these subjects may be lead to the indeterminacy of Anti-trust law.2、the analysis on the value behind the policy orientation.Everybody has different preferences on the policy. Anti-trust law is sure to make a choice between the different values,as Anti-trust law is to pursue the justice and the effiency.3、the analysis on the knowledge behind the policy orientation.This shows the tension of the theory on the Anti-trust system. In one word ,the application of Anti-trust policy has led to Anti-trust indeterminacy. Flexible policy can reflect changes in the political economic and social situation,through the application of the policy, Anti-trust trial can make a realistic decision.As the policy transfors the changes in situation,the application of Anti-trust law shows the results of indeterminacy.So, as a normative system Anti-trust law can achieve "variable value" by means of the application of "fixed rules".Anyway, the true value of the indeterminacy of Anti-trust law is to restore the reality of the complexity of the situation to ensure that substantive rationality in pursuit.On the other hand, when the Anti-trust law totally respects the substantive ration, allowing the principles, policies and other norms to influence the legal decision , the law must be open to the political values, moral values .As a result,the substantive ration of the judgments can be get,but the formal ration of the judgments has to be lost. The rule of law has to degenerate into a rule of man.In order to prevent Anti-trust law from degenerating into Anti-trust policy ,the indeterminacy of Anti-trust law must be reasonably limited . This indeterminacy comes from a large number of policies and principles applied,as a result policies and principles (flexible norms) produce an effect on the rules of law (rigid norms).So the reasonable limit on the indeterminacy of Anti-trust law is to clarify the relationship between legal and policy in the dimension of the legal theory.This paper has ordered Dworkin’s theory and Posner’s theory on the view of"law -policy ".The view on policy of Posner thinks:as a legal reasoning norm, policy is a important way to achieve reasonable result.From the methodological point of the definition of the relationship between law and policy, Posner wants to show that Dworkin’s theory on the policy confused law and policy.Law becomes more and more uncertain. However,he thinks that law is what the judgement will do,this view increases the the arbitrary of policy’s application to law.So the objectivity of legal answers has disappeared. On the other hand, the view on policy represented by Dworkin shows that: as a political value, policy must be an integral part of the law. This allows the judge’s decision built on the basis of the value, thus eliminating the arbitrary of posner’s theory. However, the only correct legal answer is based on an ideal methodology, the only objectivity of law can’t be obtained in a state of multiple political values and moral values. Thus his answer to the question of legal certainty is questionable.On this theoretical background, Habermas proposed " the theory of legal discussions".His theory wants to recognize policy as the process of legal reasoning. At the same time, through the process defination of the application of the policy into law,giving policies the limitation bound by argumental rules and the constraints of legal argumental procedures,the limit is to ensure the determinacyof the procedure. This theory shows that the indeterminacy of Anti-trust law will determine the future of anti-trust law which is the tendency of the development on procedures. The development of Anti-trust law is certain not to increase substantive rules,but to increase the procedural rules. Only in that way, Anti-trust law can not only obtain the substantive ration,but also the procedural determinacy.更多还原