【作者】 全小莲；

【导师】 那力；

【作者基本信息】 吉林大学 ， 国际法学， 2010， 博士

【摘要】 WTO透明度原则是从GATT法律体系当中继承而来,并在乌拉圭回合之后大放异彩的WTO基本原则之一。从GATT时期的潜伏到WTO时期的爆发,WTO透明度原则的发展,本身就体现着国际贸易法从关税到以非关税壁垒为主要关注目标的历史发展脉络。透明度原则最早被规定在GATT1994的第十条当中;WTO当中货物贸易的其他协议以及知识产权贸易和服务贸易当中也有相应的透明度条款;贸易政策评审机制是保障透明度原则的专门机制。争端解决机构在司法程序中也适用了透明度原则。经过近40个案件的裁决,WTO透明度原则已经形成了有众多规则内容的法律制度,同时,争端解决机构也形成了在透明度问题上的比较明确的立场。欧盟——特定海关事项案表明争端解决机构不倾向于限制WTO透明度原则适用的范围,但是同时适用透明度原则的案件并不一定裁定被诉方违反透明度原则,这也符合争端解决机构一向避免争议、小心谨慎的立场。而在众多案例当中使用“保护‘贸易者’的预期”这一提法,也表明争端解决机构有意拓展透明度的合理性基础,是对“保护缔约方预期”的条文内容的大胆突破。促成透明度如此快速发展的因素有很多,关键的两个因素是信息技术的发展和应对金融危机的共识。WTO透明度原则的宗旨是破除贸易保护,促进国际贸易健康发展。若想达成这一目标,就必须从国际贸易摩擦的国内原因入手。国际贸易摩擦往往是由于要求贸易保护的政治压力和条块分割的行政体制造成的,而深层次的原因则是应激性的选举政治和客户主义的行政机构设置与考评机制。找到原因,对症下药,才能避免既得利益集团绑架决策者和民意,才能使贸易管理和贸易政策科学、民主。西方法治土壤上培育出的透明度原则也在和东方国家的法律传统、立法实践和行政执法体制碰撞着。透明度原则的适用,导致了这些国家的立法和执法改革,日本和中国是有代表意义的两个例子。虽然改革的程度深浅不一,但是这毕竟是令人瞩目的进步。在WTO透明度原则的作用下,国际贸易体系和国内贸易管理都可以期待一个更加美好的未来。更多还原

【Abstract】 The Principle of Transparency is a basic tenet supporting the development of WTO, which is an inheritance from the framework of GATT. Most-favored-nation-treatment, National treatment and Transparency are believed to be three core foundation of WTO. Transparency is mainly prescribed in Art. X of GATT1994, and similar rules can also be discovered in other protocols, understandings and agreements, include those are inferred with trade of intellectual property and trade of service. This paper is designed to go from the birth of principle of WTO Transparency, analyze the history conditions of the development, pursue the changes and the propose of those who make these changes, dissect the mechanism of how Transparency works to fight against trade protection and concentrate on the conflict between transparency and local culture and then find out the changes of rules, systems and institutions.The introduction contains definition and cultivation of Transparency. There are also some indexes here which the author thinks them of importance.The first chapter treats the idea of Transparency and builds a foundation for further discussion. It is from the birth of principle of WTO Transparency to the analysis of the history conditions of the development.The second chapter offers insights into the cases referred to transparency clause which were made by Dispute Settlement Body include panel and appellate body in the WTO. DSB has cleared the scope of application of transparency clause and defined the term of protecting the expectations of traders. The relationship of Article X of GATT 1994 and the WTO agreement was also referred. Sometimes it seems that DSB was too prudent to achieve good governance. Though we may see some different decide, DSB has its line. The line was found to be expanding the space for the application of WTO rules and doing every effort to avoid making wrongs. A famous case is specially paid close attention to, that is the EC—Selective Customs Matters Dispute. In this case, we notice that the whole custom administration of European Community was challenged. That is without precedent in history.The third chapter shifts focus from the development to the causations of the development. One of them is the development of information skills. Personal Computer and Internet help us to get awareness of almost every news happened allover the globe. They make the carrying out transparency obligations in a convenient and effective way possible. In an addition, the skills make challenges include hiding key information into huge mountains of other messages. Government also has strong reasons and motivations to screen information they don’t want the public knows. The technology of information examination gives its support to the information-masking. How can transparency cope with these is one of the most important problems in internet era.The forth chapter tries to discuss the mechanism of how Transparency works to fight against trade protection. Trade protection was caused by trade conflict. But what we don’t know is how trade conflict leads to trade protection. The enterprises and industries in threat of failure of competition with foreign products and producers, would like to choose their spokesman in the government, parliament and medium. They have sympathy stories telling someone would lose his job and lots enterprises are in the edge of bankrupting. Decision makers get information mainly through government apartment, industry union or labor union. They are all spokesman of certain groups instead of whole domestic economy. They pass the information which their“client”wants to. So decision makers could not acquire adequate information. It was the same with customers. They are told domestic industry suffered a lot from foreign competitors who succeeded through cheap but illegal labor, and so on. They don’t know that they are the bill payers for trade protection. The cost is huge and varies from deduction of supply of public goods to more tax. If transparency works, the real cost and pay will be exposed and the public will help the government to make good choice. Any betray of the public willing and interests will be punished by votes.The fifth chapter is mainly focus on the efforts of transparency. Transparency was earlier applied in USA and they do a better job too. Eastern countries, like Japan and China, have their problems. Fist of all, their cultures are tended to hide the information and purpose of authority. That is a symbol of authoritativeness. The conflicts between transparency and local cultures are one of the major encumbrances to trade liberation. As mentioned in the chapter, transparency was finally accepted as a tool for clean, fair and effective trade government. The changes and adjustment of administrative system were followed. It’s not excellent but it is precious.The final part concludes this paper, trying to give a generalized account of the history, development and effect of transparency. Some strategies were also mentioned here as an effort for the future. This chapter crystallizes this paper and carries it to the conclusion.更多还原