比例原则在公平竞争审查例外制度运行中的适用

公平竞争审查例外制度的具体实施离不开相应的法律原则作为指引,其中最为关键也最为重要的当属比例原则。在比例原则的基本内容架构方面,有必要在传统“三阶理论”之中导入新的子原则——“目的正当性原则”,借以确立起“四阶理论”。在公平竞争审查例外制度运行过程中,引入比例原则事实上不仅具有必要性,而且也具有相应的合理性。比例原则在...

The Application of the Principle of Proportion in the Operation of the Exception System to the Fair Competition Review

The specific implementation of the exception system to the fair competition review is inseparable from the corresponding legal principles as a guide,and the most critical and important one is the principle of proportionality.In terms of the basic content structure of the principle of proportionality,it is necessary to introduce the principle of justification of purpose as a new sub-principle into the traditional“third-order theory”,and establish the“fourth-order theory”.In the operation of the exception system to the fair competition review,the introduction of the principle of proportionality is not only necessary,but also reasonable.As for the specific implementation of the principle of proportionality in the operation of the exception system to the fair competition review,it needs to focus on the following four levels of content:the first is the purposeful review of the policy measures;the second is appropriate review of policy measures for purpose;the third is necessity review of policy measures for the realization of the purpose;the fourth is examination of the balance between policy objective realization and competition damage.