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被称为经济领域宪法的《中华人民共和国反垄断法》已经实施五年有余,在这五年中,市场的整体竞争环境得到了明显的改善,市场主体也在积极地改变自身行为避免违反《反垄断法》。但是,当清晰的法律条文遇到复杂的实际问题时,市场主体甚至是执法者都可能会感到困惑。反垄断的实施就使得中外合营企业的合营方与合营企业间的许多协议面临着违法的风险。面对这样的问题,如何在遵守法律条文及立法目的的前提下,从涉嫌违反的协议中区分出真正对竞争造成损害的协议并加以规制就显得尤为重要。通过对中外合营企业与各合营方之间协议的特殊性进行分析,在充分借鉴欧洲和美国的成熟经验的基础上试求找出区分违法协议的一般原则与方法。
The antitrust law of the People’s Republic of China, known as the constitution in the economic field, has been implemented for more than five years. During the five years, the overall competitive environment of the market has been significantly improved. Market players are also actively changing their behavior to avoid violating the “ Antitrust Law. ” However, when clear legal provisions encounter complex practical problems, market players and even enforcers may feel confused. The implementation of antitrust will make many agreements between joint ventures and joint ventures of Sino-foreign joint ventures face the risk of illegality. In the face of such problems, how to distinguish and regulate the agreements that actually cause damage to competition from the alleged breach agreements is particularly important under the premise of complying with the legal provisions and legislative purposes. Through the analysis of the particularity of the agreement between Sino-foreign joint ventures and each joint venture, we try to find the general principles and methods of distinguishing the illegal agreements on the basis of fully drawing on the mature experience of Europe and the United States.