反跨境补贴的合法性探究及中国因应

The Legitimacy of Countering Cross-Border Subsidies and China’s Response

摘要: 随着经济全球一体化发展和跨国公司在全产业链的整体化布局，国际贸易与国际投资边界日益模糊，投资母国为境外企业提供经济支持的“非常”情况得以合理化，进而引申出源于第三国政府的财政支持是否构成补贴的新兴问题。本文通过对反跨境补贴第一案中双方抗辩及裁审思路的梳理分析，认为将投资母国的行为作为东道国行为予以规制将有违国家责任理论，且对于被调查国而言，如此归责模式将过分苛责东道国对维持完美竞争市场的义务。对此，我国应严令反对美欧“规则制华”政策，主张严格认定国家责任，同时规范本国补贴的发放与审查，严格落实反补贴申报等国际义务，积极应对跨境补贴规制趋势，从严把控跨境反补贴规制立法，以实现反补贴贸易扭曲效应的长远目标与发展中国家吸引外资现实需求的平衡追求。

Abstract: With the development of global integration of the economy and the overall layout of transnational corporations in the whole industrial chain, the boundaries between international trade and international investment are becoming increasingly blurred, and the extraordinary situation of economic support provided by the home country for for-eign enterprises is becoming rationalised. It raises a new issue of whether financial support from the government of a third country constitutes subsidy. Through the analysis of both sides’ argue and adjudication thinking in the first case against cross-border subsidies, this paper concludes that regulating the conduct of the home country as the conduct of the host country will violate the theory of state responsibility, and for the investigated country, such a mode of attribution will excessively blame the host country’s obligation of maintaining a perfectly competitive market. In this regard, China should strictly oppose the “rule against China” policy and advocate the strict identification of state responsibility. At the same time, regulating the issuance and review of domestic subsidies and strictly implementing international obligations such as countervailing duty declarations are also crucial, furthermore, facing up to the tendency of cross-border subsidy regulation actively and rig-orously controlling related legislation. All of these are moving towards to the a balance between the long-term goal of countervailing trade-distorting effects and the realistic needs of developing coun-tries in attracting foreign investment.