威慑目标下垄断行为的法律责任体系研究

Research on the Legal Liability System of Monopolistic Behavior under the Goal of Deterrence

摘要: 威慑是反垄断制裁最重要的价值目标，威慑目标的实现依赖法律责任。现行的反垄断法规定了行政处罚与民事损害赔偿二元责任体系，但该体系实际威慑效果未达到立法与实践预期。不仅是行政处罚的不确定性会影响威慑效果，还存在行政处罚中“没收违法所得 + 罚款”并用模式在适用中的困难。且反垄断法采取的二元责任体系在实践适用中存在不协调的问题。从法经济学的威慑理论来看，这一法律责任体系很难实现行政执法、民事诉讼的良性互动，难以实现规制成本与收益的平衡。因此，优化行政处罚与民事损害赔偿的适用关系，构建完善有效的行政处罚与民事损害赔偿协调机制，平衡私益救济以及公共救济，在谦抑性基础上打击垄断行为，有助于实现反垄断制裁的最优威慑。

Abstract: Deterrence is the most important value goal of anti-monopoly sanctions, and the realization of the goal of deterrence depends on legal responsibility. The current Anti-Monopoly Law stipulates a dual liability system for administrative penalties and civil damages, but the actual deterrent effect of this system does not meet the expectations of legislation and practice. Not only the uncertainty of administrative punishment will affect the deterrent effect, but also the difficulty in the application of the combined model of “confiscation of illegal gains + fines” in administrative punishment. Moreover, there is a problem of inconsistency in the application of the dual liability system adopted by the Anti-Monopoly Law in practice. From the perspective of the deterrence theory of law and economics, it is difficult for this legal liability system to achieve a benign interaction between administrative law enforcement and civil litigation, and it is difficult to achieve a balance between regulatory costs and benefits. Therefore, optimizing the application relationship between administrative penalties and civil damages, building and improving an effective coordination mechanism between administrative penalties and civil damages, balancing private and public remedies, and combating monopolistic behaviors on the basis of modesty are conducive to achieving the optimal deterrence of anti-monopoly sanctions.