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非违反(协议)之诉是WTO争议解决机制中旨在维护WTO框架下多边或双边贸易谈判结果的有效机制之一。其设立的根本目的就在于匡正那些虽未违反GATT协议规定,但却客观上破坏了WTO成员各方之间通过关税减让谈判所达成的利益平衡的行为,从而有效维护成员各方从关税减让中获得的好处和利益,进一步鼓励和促进各成员方继续积极实行关税减让,促进国际贸易自由化。GATT1994第23条和SDU第26条都对非违反(协议)之诉的成立规定了三个基本条件。按照规定,任何WTO成员方要想援引GATT1994第23条1款(b)项的规定对另一成员方提起非违反(协议)之诉并请专家组作出裁定或建议的条件是:1.被诉成员方实施了一项措施;2.申诉成员方根据有关协议享有合理期待的利益;申诉成员方合理期待的利益因被诉成员方采取的措施而正在被取消或被损害。申诉方如不能证明上述三点,非违反(协议)之诉则不能成立。但需要注意的是,对非违法(协议)之诉的救济方法与对违反协议之诉的救济方法之间是有区别的。由于对非违反(协议)之诉的救济方法事实上是一种用以维护成员方之间通过谈判业已达成的关税减让平衡的工具,因此,它向被损害成员方所提供的仅是针对其被损害的利益请求经济赔偿的权利(right of redress),被损害成员方并不能因此而有权要求损害成员方撤销其所实施的措施。
The non-violating (agreement) complaint is one of the effective mechanisms in the WTO dispute settlement mechanism aimed at safeguarding the outcome of multilateral or bilateral trade negotiations under the WTO framework. The fundamental purpose of its establishment is to rectify those who did not violate the provisions of the GATT agreement, but objectively undermined the interests of all WTO members negotiated through tariff concessions between the balance of behavior, so as to effectively protect the members from the tariff reduction Let the benefits and benefits gained in the process further encourage and promote the continued active implementation of tariff concessions by all member states and the promotion of the liberalization of international trade. Article 23 of GATT 1994 and Article 26 of SDU provide three basic conditions for the establishment of a non-violation (agreement). In accordance with the provisions, any member of WTO wishing to invoke Article 23 (1) (b) of GATT 1994 to file a non-infringement (agreement) appeal against another member and request the panel to make a decision or recommendation shall: V. The member has instituted a measure; 2. The member of the petition has a reasonable expectation of interest under the agreement; the reasonable expectation of the petition member is being canceled or compromised due to the measures taken by the petition member. If the claimant can not prove the above three points, no non-violation (agreement) of the complaint can not be established. However, it is important to note that there is a distinction between remedies for non-infringement (agreement) claims and remedies for violations of the agreement. Since the remedy for a non-violating (agreement) complaint is in fact a vehicle for maintaining the balance of tariff concessions negotiated between the member parties, it provides to the injured party only If the injured party claims the right of redress, the injured party shall not be entitled to claim damages from the member to revoke the measures it has implemented.