求助一篇毕业论文文献翻译部分的英文文献原文~~~

求助一篇毕业论文文献翻译部分的英文文献原文~

反垄断执法机构 ——《反垄断法》释义之七

作者：文 / 王晓晔 来源（期刊）：中国商界杂志（2008年第5期） 文章点击数：650

任何一部法律的效力相当大程度上是取决于它的执法机构。因此，如何设置我国反垄断执法机构，使这部法律真正成为我国市场竞争秩序的守护神，就成为人们普遍关注的问题。我国2007年通过的反垄断法第9条规定，“国务院设立反垄断委员会，负责组织、协调、指导反垄断工作⋯⋯。”第10条规定, “国务院规定的承担反垄断执法职责的机构依照本法规定，负责反垄断执法工作。国务院反垄断执法机构根据工作需要，可以授权省、自治区、直辖市人民政府相应的机构负责有关反垄断执法工作。”这说明，参与我国反垄断行政执法的机构可分为三层：一是国务院反垄断委员会;二是国务院规定的承担反垄断执法职能的机构;三是经国务院反垄断执法机构授权的省、自治区、直辖市人民政府相应的机构。

一、国务院反垄断委员会

严格地说，国务院反垄断委员会不是一个反垄断执法机构，因为它的任务只是组织、协调和指导反垄断执法工作，而不参与反垄断案件的调查和案件的裁决。国务院反垄断委员会主要履行下列职责：

1、研究拟定有关竞争政策。竞争政策是市场经济国家为保护和促进竞争而实施的基本经济政策，目的是确保竞争机制能够发挥优化资源配置的作用，提高企业生产效率，增大消费者社会福利。竞争政策一般包括以下内容：(1)禁止企业间订立限制竞争的协议或者协调其市场行动，特别是禁止它们商定价格、限制数量和分割销售市场。(2)禁止滥用市场支配地位的行为包括掠夺性定价、拒绝交易、价格歧视、搭售或者附加其他不合理条件等。(3)控制企业合并，目的是防止市场集中度过高，维护竞争性市场结构。鉴于我国国情，我国竞争政策还包括禁止政府部门滥用行政权力限制竞争的行为。与国家的货币政策、财政政策等其他经济政策相比，竞争政策的特点是以国家的反垄断法为基础，即竞争政策就是一种法律化的经济政策。除了反垄断法，竞争政策还体现在国家对某些在过去被视为自然垄断或者国家垄断的行业或者部门实行放松管制和促进自由竞争的政策。

2、组织调查、评估市场总体竞争状况，发布评估报告。掌握市场总体竞争状况不仅是制定国家竞争政策的基础和前提条件，而且也是执法机构恰当执行反垄断法的基础和前提条件。鉴于市场竞争与市场结构有着密切的关系，反垄断委员会调查和评估市场总体竞争状况时，尤其应当重视企业集中的情况和市场集中度。

3、制定、发布反垄断指南。我国2007年通过的反垄断法只有57条，大多数规定非常简单，有些只是原则性规定。因此，反垄断法赋予反垄断法委员会制定和发布反垄断指南的任务。反垄断指南一般是出于可操作性的目的，对适用反垄断法的各种情况进行分析，或者对反垄断法的概念进行解释。反垄断指南非常重要，它不仅可以给反垄断执法机构的执法工作提供指导，而且也可以给企业的生产经营活动提供指导。

4、协调反垄断行政执法工作。在我国目前情况下，国家商务部、国家工商局和国家发改委可能共同承担执行反垄断法的任务，这种情况下，国家就需要一个机构来协调反垄断行政执法工作，以避免多家机构可能产生的执法不统一问题。反垄断行政执法的协调可以表现在很多方面。反垄断委员会拟定竞争政策，制定和发布反垄断指南，这些就是重要的反垄断协调工作。此外，多家机构执行反垄断法可能会产生管辖权冲突和法律冲突，反垄断委员会就有必要出面协调这些冲突。根据我国现实情况，国务院反垄断委员会的协调工作不仅涉及国家商务部、国家工商局和国家发改委的反垄断执法工作，而且可能涉及电信、电力、邮政、铁路、银行、保险等领域的行业监管工作，因为这些行业的改革方向都是打破垄断，引入竞争机制，行业监管势必会涉及市场竞争。

5、国务院规定的其他职责。这即是说，国务院出于实际工作的需要，可能赋予反垄断委员会其他职责，例如与国外反垄断主管机关和国际组织进行交流合作以及进行竞争政策双边、多边国际协定谈判的任务。这即是说，在反垄断行政执法权被分割在多家机构手中的情况下，如果一种权限不宜交付个别执法机构，它可以被交付给国务院反垄断委员会。

我国反垄断法没有明确规定国务院反垄断委员会的组成。根据国务院提交全国人大常委会的反垄断法草案的规定，这个委员会是由国务院有关部门、机构的负责人和若干专家组成。这些部门和机构应被理解为是与执行反垄断法相关的机构，但不排除某些与国家竞争政策关系密切的机构，尽管它们不是专门执行反垄断法的机构。我国反垄断法也没有明确国务院反垄断委员会的工作规则，只是规定这些规则由国务院规定。因为反垄断委员会基本上是一个拟定国家竞争政策的机构，这些政策对企业的市场行为有极其重要的指导意义，这个机构的工作规则和议事方式应当体现透明度和程序公正的原则。

二、反垄断执法机构

因为国务院反垄断委员会承担组织、协调和指导反垄断行政执法工作的任务，并履行研究拟定有关竞争政策、制定和发布反垄断指南等多项职责，我国反垄断执法机构的主要任务就是发动反垄断调查程序、审理案件和对案件做出行政裁决。这也即是说，反垄断行政执法机构是一个准司法机构。根据第10条的规定，反垄断行政执法分为中央和地方两级机构。

1、反垄断中央执法机构

在我国反垄断法颁布后的初期阶段，将有国家商务部、国家工商行政管理总局、国家发改委三家机构分头执行反垄断法。商务部享有反垄断执法权的主要依据是2006年以商务部为首的六部委共同发布的《外国投资者并购境内企业的规定》。根据这个规定的第10条，商务部对外资并购境内企业享有审查权，包括反垄断审查的权力。在经商务部审查的外资并购活动中，引人注目的有美国凯雷收购中国的徐工案，法国SEB集团收购中国的苏泊尔案。2006年，法国SEB收购中国苏泊尔的反垄断调查是商务部启动的第一个反垄断调查。反垄断法颁布之后，国家商务部对外资并购的反垄断审查权将扩大到所有的企业并购活动。目前，国家商务部执行反垄断法的下属机构是“反垄断调查办公室”。2007年3月，该办公室还发布了《外国投资者并购境内企业反垄断申报指南》。。

国家工商行政管理总局享有反垄断执法权的依据主要是1993年颁布的《反不正当竞争法》。这部法律规范不正当竞争行为，也规范某些限制竞争行为，如该法第6条和第7条的规定。根据以往的工作经验，国家工商行政管理总局公平交易局的反垄断执法活动将集中在禁止滥用市场支配地位的方面。此外，它还有权监管不涉及价格问题的垄断协议。

国家发改委享有反垄断执法权的主要依据是我国1997年颁布的《价格法》。该法第14条第1款规定，经营者不得“相互串通，操纵市场价格，损害其他经营者或者消费者的合法权益。”根据该法第5条，国务院价格主管部门统一负责全国的价格工作，包括执行《价格法》第14条第1款的任务。国家发改委执行反垄断法的机构主要是其下属的价格司，其任务主要是禁止价格卡特尔以及涉及价格的其他垄断行为。国家发展改革委员会2003年发布过《制止价格垄断行为暂行规定》，依法查处过一些串通价格的行为。

2、地方反垄断执法机构

出于建立全国统一、开放和竞争性大市场的需要，我国反垄断法把反垄断执法作为中央事权，明确规定由国务院规定的承担反垄断执法职责的机构负责反垄断执法工作。这即是说，地方各级人民政府及其有关部门均不享有反垄断行政执法权。然而，考虑到我国辽阔疆域，人口众多，如果所有案件全部由国务院反垄断执法机构来处理，工作量势必太大，反垄断执法机构事实上也不可能有足够的时间进行反垄断调查，反垄断执法工作就会成为一句空话。因此，反垄断法第10条第2款规定，国务院反垄断执法机构根据工作需要，可以授权省、自治区、直辖市人民政府相应的机构负责有关反垄断执法工作。这即是说，省、自治区、直辖市人民政府的相关机构虽然没有执行反垄断法的职责，但它们可在国务院反垄断执法机构授权的范围执行反垄断法，例如授权处理省、自治区、直辖市行政区域具有限制竞争影响的案件。

三、执行反垄断法的其他机构

我国反垄断法第53规定，“对反垄断执法机构依据本法第28条、第29条作出的决定不服的，可以先依法申请行政复议;对行政复议决定不服的，可以依法提起行政诉讼。对反垄断执法机构作出的前款规定以外的决定不服的，可以依法申请行政复议或者提起行政诉讼。”这说明，人民法院在我国反垄断执法中也将发挥重要作用。实际上，出于程序公正的考虑，行政执法机构的决定接受司法审查已成为法制国家的一项基本原则。我国反垄断法刚刚通过，人民法院在反垄断法领域尚未发挥重要作用。但随着反垄断法的实施，特别是随着反垄断司法审查案件逐步增加，人民法院毫无疑问将成为执行我国反垄断法的一支重要力量。

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Sino-Japan Trade Relations
The bilateral trade between China and Japan amounted to US$236 billion in 2007, reflecting an increase of 20.6 percent compared with the previous year, 33 times over the trade volume at the beginning of the reform and opening up. This vast volume and fast growth took place amid China’s accession into the World Trade Organization at the end of 2001 and increased trade disputes between the two countries, not to mention recurrent foreign exchange rate fluctuations in international currency markets and somehow intensified fears in Japan of China’s enhanced competitiveness.
Given this background, it is of interest to speculate on what future prospects will be for the two neighbors’ economic relations, and in particular, what has been special in their bilateral economic relations as well as what challenges lie ahead for them.
I. Characteristics of Sino-Japanese Trade
Bilateral diplomatic relations between the People’s Republic of China and Japan were normalized in 1972, shortly after the United States President Richard Nixon visited Beijing but well before the normalization of U.S.-China relations in 1979. During the year immediately prior to Sino-Japanese diplomatic normalization, the two countries’ bilateral trade stood at about 900 million dollars, approximately 4 percent of China’s total external trade at the time. Normalization was quickly followed by a sharp rise in China’s imports of Japanese goods, first mainly of textile goods and various machinery tools, and later of household electronics, cars and light trucks, etc.

Sino-Japanese relations made considerable progress in the 1980s. Only a few years after China’s reform and opening in 1978, Japanese brands of TV sets and cars flooded into Chinese markets, and ordinary Chinese consumers began to taste the products of western materialism. Surges in Chinese imports of Japanese goods, through various means and channels of trade, led China to accumulate serious trade deficits and to draw on her official foreign exchange reserves. This ultimately resulted in substantial Chinese currency devaluations throughout the 1980s.
The growth of China’s external trade dipped in 1989-1990 perhaps mainly due to various non-economic reasons, but the bilateral trade with Japan continued to expand at a steady rate. In 1993 Japan surpassed Hong Kong to become Chinese Mainland’s largest trade partner, by official Chinese statistics, and it has remained so ever since. Overall, between 1990 and 2002, the growth of bilateral trade between China and Japan in dollar terms averaged 16.3 percent per annum, exceeding that of China’s total external trade over the same period (15 percent). From 2000 to 2007, annual foreign trade volume increased by 16 percent.
The fact that the growth in bilateral trade between China and Japan since the early 1990s has been rapid and more or less steady (except briefly for 1997-98), appears somehow unusual or even puzzling. First, during many of the years of the period, the Japanese economy and Japan’s overall external trade had slowed down significantly compared to the 1980s. Second, as the Asian financial crisis hit many of the economies and their intraregional trade hard, bilateral trade between China and Japan suffered only a slight setback, if any, during the turbulent two years of 1997-98. Third, when the Japanese yen witnessed significant depreciations vis-à-vis the US dollar whilst Chinese Yuan continued steady peg to the US dollar during 1998 and 2000, China’s Japanese imports/exports seemed not to have been reactive to the changes in the foreign exchange rates. In the case of 1998, China’s exports to Japan did decrease by a moderate amount (a 7 percent fall), which was nonetheless proportionally smaller than the overall falling level in Japan’s imports (an 11.4 percent fall). In the case of 2000, China’s exports to Japan actually increased by a large amount, unscathed by any unfavorable moves in the currency markets. However, as long as the further appreciation of Chinese Yuan to US dollar, the pressure on exporting industry in China becomes more serious than ever before.
These “unusuals” seem to suggest that there have been fundamental, structural driving forces behind the growth in the bilateral trade between China and Japan. Had Sino-Japanese economic relations been similar to other ordinary bilateral economic relations, a rather slower growth in the bilateral trade could have been expected instead. Moreover, even if (from a Chinese point of view) China’s economy and trade have achieved a high growth record, it remains to be wondered why China’s trade with Japan grew faster than her trade with the entire outside world since the early 1990s.

II. The Sino-Japanese “Special Relationship”
Right now, China has surpassed U.S. to be the largest trade partner to Japan, and Japan means the third largest trade partner to China as well. At mean time, Japan is the largest importing origin country and the fourth largest exporting market of China.
It should be kept in mind as always that both at the beginning of our reform and opening and presently after three decades of development, China was and still is in a catching-up process in relation to the developed world where Japan has long belonged. Over this period, both China and Japan have undergone a number of fundamental economic structural changes, and these have affected their trade and economic relations. What will be of interest to us here are the common or enduring factors that have been effective within the dynamics of interaction between demand and supply on each side of the two countries’ economic relations.
We will look first at China’s demand for Japanese products and then at Japan’s demand for Chinese products.
With a growing economy and an increasingly diversified trade partnership network throughout the 1990s, China’s demand for Japanese products had gradually moved into relatively high quality consumer goods and internationally price-competitive industrial goods. It is well-known that a breed of new domestic Chinese producers of electronics has emerged and has expanded their share in China’s domestic markets, resulting in a fall in the market shares that used to be enjoyed by certain Japanese brands. Yet Japanese manufacturers as a whole have been successful in investing in Research and Development, moving on to upscale markets, thus maintaining their competitiveness in the world manufacturing market as well as in China’s domestic market. On the other hand, the role of Japanese direct investment in China and Japan’s financial aid to China in promoting bilateral trade should also be noted.
Throughout the 1990s Japan’s direct investment had been virtually invariably more than 10 percent of China’s FDI inflow in annual terms, though there had been some marked falls between 1997 and 2000. Moreover, Japanese direct investment in China has been relatively concentrated in manufacturing, which is believed to have a stronger effect in generating trade linkages between the two countries than otherwise.
Japan had been investing in China during the early 1990s, and trade decreased during the late 1990s, but resurged at the millennium. The resurgence might have been because of the prospect of China becoming a part of the World Trade Organization (WTO). “By 2001 China’s international trade was the sixth-largest in the world” and over the next several years it is expected to be just under Japan, the fourth largest. Up to December, 2007, the real invest from Japan to China accumulated to US$61.56 billion. Japan turns to the second largest investing origins to China.
Japan’s financial aid to China (first begun with the diplomatic normalization in the 1970s), mainly through government-to-government channels, has totaled some US$20 billion in the form of lending on favorable terms, together with some additional US$2 billion mainly in the form of technical assistance. Japan is the largest provider of financial aid to China. The role of this financial aid has been significantly positive and multifaceted in China’s development process, and it has certainly helped the growth of bilateral trade.

Since 1995 Japan has been taking a very proactive role in using WTO law to challenge its dominant trade partners, the United States. But its emphasis on a rule-based approach is not only relegated to the United States. In fact, it promises also to spill over into trade disputes with key partners in Asia where, for historical, reasons Japan has had trouble taking confrontational stances. This is particularly true for the case for China, which is widely perceived as the rising economic power that poses a direct challenge to Japan across a number of critical and sensitive economic issues. This paper focuses specifically on the interplay between WTO law and politics as Japan seeks to deal with China across a number of trade issues and disputes.

Sino-Japanese trade relations boast great growth potential and the two sides should make more efforts to push economic cooperation in more fields.
China and Japan have made much headway in terms of bilateral trade in the past 30 years, when their bilateral trade volume expanded, with more types of goods traded, and they have played an increasingly important role in each other's trade development.
Japan is China's third largest trade partner and the fourth largest export destination while China replaced the US in July to become the No 1 export destination of Japan. The volume of bilateral trade jumped to $236 billion last year from a meager $4.8 billion in 1978, a 48-fold increase. During this time, China had a trade deficit with Japan for most of the years.
However, Sino-Japanese trade growth still lags behind that of China's overall trade. In 1978, Sino-Japanese trade accounted for 23.4 percent of China's total trade while last year it had shrunk to less than 11 percent. Unwelcome as it is, it also shows that bilateral trade still has great potential to expand further.
Japan has supported China's economic development through yen loans and grants. By the end of last year, Japan had committed to a total of $30 billion to China for financing 255 projects.
Another $1.27 billion has been earmarked in grants to help China's social causes, such as education and poverty reduction.
As Chinese President Hu Jintao said in a speech during his visit to the Waseda University in May: "The Japanese government has played a positive role in China's modernization drive by making Japanese yen loans in support of China's infrastructure construction, environmental protection, energy development and scientific and technological advancement."
Japan also benefits from its yen loans for China. Through the yen loans, it can ensure imports of Chinese resources, provide more opportunities for its enterprises to export to and invest in the Chinese market. Japanese enterprises, for example, have had much more investment in such places as the Yangtze River Delta, the Pearl River Delta and areas surrounding Bohai Sea. They used to invest mainly in Dalian, Liaoning province.
As Sino-Japan economic cooperation deepens, the market has replaced government as the major driving force for bilateral trade and investment growth. The yen loans have been earmarked for projects in more fields, such as environment since 1996, and Chinese enterprises have expanded investment in Japan, with some listed in the Japanese stock market.
With those achievements, the two countries need to strengthen cooperation in sectors of mutual concern, such as energy saving and environment. Japanese enterprises are not very active in technological transfers owing to IPR concerns. They have transferred mainly low-end technologies to China.
As the Chinese government is enhancing IPR protection, it is advisable for Japanese enterprises to enter China to have the "first-mover" advantage in future cooperation. Meanwhile, the prices of technological transfers are often too high for Chinese firms to afford, which is also a hurdle for technology trade between the two countries.
The two sides should also enhance cooperation between Japanese small and medium enterprises (SMEs) and Chinese businesses through such moves as establishing a "Japan SME Park". The China Association of International Trade is now setting up a system to help products of Japanese SMEs to enter the Chinese market.

it is of interest to speculate on what future prospects will be for the two neighbors’ economic relations, and in particular, what has been special in their bilateral economic relations as well as what challenges lie ahead for them.

Had Sino-Japanese economic relations been similar to other ordinary bilateral economic relations, a rather slower growth in the bilateral trade could have been expected instead. Moreover, even if (from a Chinese point of view) China’s economy and trade have achieved a high growth record, it remains to be wondered why China’s trade with Japan grew faster than her trade with the entire outside world since the early 1990s.
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求助一篇毕业论文文献翻译部分的英文文献原文~~~视频