行政垄断规制悖论解析——兼谈行政权与经济调节权分际

行政垄断被归结为“行政权的滥用”,这给反垄断法规制带来理论上的困难:作为经济法的反垄断法何以能够监控行政权的行使?本文认为:行政垄断在本质上属于滥用经济调节权的结果,是政府调控、规制经济的副产品;反垄断法可以“揭开行政权的面纱”,对行政垄断进行复合调整;在建构竞争秩序的过程中为防止公权力的滥用或者公权力作用的相互抵消,应该协调行政法、经济法在法学理论与制度上的冲突,对行政权、经济调节权作出一体化规制。

The Analysis on the Contradiction Ways of Regulating Administrative Monopoly

Administrative monopoly was classified as abusing administrative power. Such theory cannot further explain why antimonopoly law can regulate conduct traditionally belong to the scope of administrative law. The author holds that in this article: administrative monopoly is the byproduct for the government to adjust economy. It comes from the abusing of the power of government to regulate economy, not from the abusing of administrative power. Under such conditions, the monopoly law can pierce the veil of administrative power and regulate such conduct. Because of the connections between administrative power and economy regulating power, it is important for administrative law and economic law to coordinately decide the reasonable scope for each power.