論反壟斷法的謙抑性適用──基於總體執法觀和具體方法論的分析

On Modest Application of Antimonopoly Law

反壟斷法的謙抑性適用是指在總體執法態度和方法路徑上的必要、適度、克制和非冒進的適用姿態。反壟斷法執行的理想狀態是不枉不縱、恰如其分和精準定位，但這種目標只可儘量接近而又難以企及，因而只能在總體執法效果上退而求其次。由於市場認知的困難性以及市場强大的自癒能力，在次優效果的追求中總體上可以採取必要的“寧縱不枉”的謙抑執法觀，以儘量减少錯誤成本。反壟斷法是經濟與法律的結合體，經常以經濟學分析為體，以法律方法為用，其謙抑性需要進行方法論上的貫徹。反壟斷法兼具剛性和柔性，以法律解釋為核心的法律方法是調和剛柔的路徑與載體，通過謙抑的解釋實現剛柔相濟。經濟學分析是反壟斷法執行的重要支撑，但仍有其侷限性。執法畢竟涉及“生殺予奪”，運用經濟學分析應當謹慎和適度，在反壟斷法施行初期尤其要防止經濟學分析“拜物教”。

The modest and restrained principle of anti- monopoly law enforcement refers to the necessary, moderate, restrained and non- aggressive attitude in the general law enforcement view and the path method. The ideal state of anti- monopoly law enforcement is impartial, appropriate and precise positioning. However, the ideal goal could not reach utterly but only could be as close as possible. Thus, it can only settle for less-than-ideal alternative on general enforcement effects. Due to the difficulty of understanding and the strong self-healing ability of the market, in the pursuit of less-than-ideal alternative, we could adopt the modest and restrained principle of law enforcement that 'rather let off than treat unjustly' to minimize the cost of errors. Anti-monopoly law is a combination of economy and law. It often takes economic analysis as its essence and legal method as its manifestation. Its modest and restrained principle needs to be implemented in methodology. The antimonopoly law has both rigidity and flexibility. The legal method with legal interpretation as the core is the path and carrier to reconcile rigidity and flexibility. The modest and restrained interpretation could realize the combination of rigidity and flexibility.' Economic analysis is an important support for the implementation of the anti-monopoly law, but it still has its limitations. Since law enforcement involves 'life or death' after all, economic analysis should be used cautiously and appropriately. In the early stage of the implementation of the anti-monopoly law, it is especially necessary to prevent 'fetishism' of economic analysis.