全书分为十二章，从行政垄断起源、法律制度、立法、执法、合规等全方位进行阐述，其目的在于阅读者可以全面理解中国反行政垄断现状，以及识别行政垄断，并运用法律救济，以维护自身合法权益。第一章共四节，介绍了行政垄断在中国的规制历程，反行政垄断的行政执法，行政垄断产生的原因和特征，以及行政垄断实施的危害后果。第二章共共六节，介绍了行政垄断规制沿革，反垄断法与反行政垄断立法，反行政垄断重要的法律法规及规范性文件，行政诉讼法与反行政垄断等。第三章共三节，阐述反行政垄断的执法，包括阐述反行政垄断执法机关，行政垄断主体及执法管辖，行政执法过程中的法律法规竞合的处理原则和方法。第四章共四节，就行政垄断与滥用职权进行了详细介绍，包括滥用职权与滥用行政权力的区别，滥用职权的司法实践问题，滥用职权与超越职权的认定，行政行为明显不当的认定等。第五章共三节，分别对行政垄断的认定进行阐述，包括行政垄断构成要件，行政垄断的认定规则，行政垄断违法判定原则和方法。第六章共五节，介绍了行政垄断的表现形式，分别对行政垄断的强制交易、地区封锁、行政限制竞争等进行阐述。第七章共二节，对排除和限制竞争进行介绍，尤其对司法中的排除和限制竞争的认定，以及排除和限制竞争的评估方法进行了详细介绍。第八章共二节，对行政垄断引发经济垄断的处理进行介绍，包括行政垄断受益经营者规制立法、受益经营者的认定和类型，受益经营者的法律责任。第九章共六节，对价格垄断与行政价格垄断进行介绍，包括价格垄断规制的立法，价格垄断协议，滥用市场支配地位价格类型，价格欺诈行为，不公平要价，反垄断法与价格法的适用等。第十章共四节，分别对行政垄断法律责任进行阐述，包括行政垄断行政责任立法，执法建议权的执法实践，其他行政责任和信息公开。第十一章共四节，对行政垄断行政诉讼进行阐述，包括反行政垄断行政诉讼规制，反行政垄断诉讼主体和举证，行政垄断受案范围，反行政垄断诉讼管辖。第十二章共四节，主要介绍反行政垄断合规和合规建议。

序 一

破除行政性垄断，本质上就是要处理好政府和市场的关系。社会主义市场经济应该是

法治经济，对行政性垄断依法施治方为治本之策。我国《反垄断法》规定了行政性垄断

的内容，但没有使用这一术语，而是使用了“滥用行政权力排除、限制竞争”这一表述。

党的十九大报告明确提出要“深化商事制度改革，打破行政性垄断”。

行政主体滥用行政权力排除、限制市场竞争的行政性垄断并非为中国所独有，任何国

家（包括其他经济体制转型的国家乃至西方市场经济发达国家）都可能存在滥用行政权力

干预市场竞争的问题，并且都有着大致相同的基本动因。不过，行政性垄断在各个国家和

地区产生的具体原因还是存在差异性的，也正是这种差异性使得其在各个国家和地区的表

现形式和程度不同。在我国，在由传统计划经济体制向社会主义市场经济体制转轨这个过

程中显得非常突出。行政性垄断虽然具有不同于一般经济性垄断的特点，但它们在本质上

都是对竞争的限制，其结果都破坏了自由公平的市场竞争秩序，因而应当受到同样的规制。

而且，既然行政性垄断在我国表现得较为严重和突出，那么我国也就更有理由和必要对其

进行法律规制。

基于此，我国《反垄断法》在规制经营者的垄断行为的同时，也要规制滥用行政权力

排除、限制竞争的行为。该法一方面在总则第8条规定：“行政机关和法律、法规授权的

具有管理公共事务职能的组织不得滥用行政权力，排除、限制竞争”，另一方面又在第五

章用6个条文分别规定了滥用行政权力排除、限制竞争的主要表现形式。总体来说，这些

规定是对禁止滥用行政权力排除、限制竞争的基本政策的延续和重申，为在这个领域推进

竞争政策和反行政性垄断提供了基本的法律依据。同时，通过2018年机构改革实现了反垄

断执法“三合一”的国家市场监管总局在2019年出台和实施了《制止滥用行政权力排除、

限制竞争行为暂行规定》。此外，从2016年开始建立和实施的公平竞争审查制度，既是我

国确立和强化竞争政策基础地位的关键一步，也是我国实现反行政垄断目标的重要路径。

我国目前反行政性垄断的学术论著已经不少，但这方面的实务论著还不算多。由林文、

黄村夫律师撰写的《中国反行政垄断原理与实务指要》就是一本偏重反行政性垄断实务研

究的著作。该书内容丰富，立意深远，尤其结合实例进行分析，具有较强的实操性和可读性，

是律师、法务和行政执法人员等的重要参考资料。

林文律师原执业于春城昆明，为了实现竞争法专业的梦想来到上海，我们已相识5年

有余。在短短的5年之中，林文律师除每年定向给我们《竞争法律与政策评论》撰写一篇

调研报告之外，还出版了反垄断专著3部。他的论著在业界具有一定的影响力，为行业贡



IV

献了专业的力量。

借此机会，我乐意为读者推荐此书，同时也希望更多的实务工作者关注和推动我国的

反垄断事业。

是为序。

王先林

上海交通大学特聘教授、竞争法律与政策研究中心主任

国务院反垄断委员会专家咨询组成员

中国法学会经济法学研究会副会长

2020年11月9日于上海



目 录

第一章 行政垄断概述 ·······················································································1

第一节 行政垄断规制的历程········································································································1

一、中国经济体制改革 ···················································································································1

二、行政垄断的起源与概念 ···········································································································3

三、行政垄断的类型 ·······················································································································9

第二节 反行政垄断执法··············································································································10

一、反行政垄断执法萌芽期 ·········································································································10

二、反行政垄断执法的成长期 ·····································································································11

三、反行政垄断执法发展期 ·········································································································13

第三节 行政垄断产生的原因和特征··························································································15

一、行政垄断产生的原因 ·············································································································15

二、行政垄断的特征 ·····················································································································15

三、行政垄断与经济垄断的区别 ·································································································16

第四节 行政垄断行为··················································································································17

一、行政垄断的损害后果 ·············································································································17

二、行政垄断与公用事业的垄断关系 ·························································································19

三、反行政垄断与改革 ·················································································································20

第二章 反行政垄断法律体系 ··········································································23

第一节 行政垄断规制沿革··········································································································23

一、规制立法模式 ·························································································································23

二、行政垄断规制历程 ·················································································································24

三、早期国务院文件对行政垄断的规制 ·····················································································24

四、行政垄断规制的立法现状 ·····································································································25

第二节 反垄断法与反行政垄断立法··························································································31

一、反垄断立法体系 ·····················································································································31

二、法律立法中的行政垄断规制 ·································································································34

三、行政垄断规制缺陷与《反垄断法》修改 ·············································································36



第三节 其他重要法律法规··········································································································39

一、宪法对反行政垄断的规制 ·····································································································39

二、《招标投标法》与反行政垄断 ·····························································································40

三、《价格法》与反行政垄断 ·····································································································45

四、《行政诉讼法》与反行政垄断 ·····························································································45

五、《电子商务法》与反行政垄断 ·····························································································47

六、《优化营商环境条例》 ·········································································································47

第四节 党代会文件及党纪处分条例··························································································51

一、党代会与反行政垄断 ·············································································································51

二、《党纪处分条例》与反行政垄断 ·························································································52

第五节 国务院规范性文件与反行政垄断··················································································52

一、禁止实行地区封锁的规定 ·····································································································52

二、整顿和规范市场经济秩序 ·····································································································53

三、促进市场公平竞争 ·················································································································53

四、推动优化营商环境政策 ·········································································································54

五、支撑民营经济改革发展 ·········································································································54

第六节 反行政垄断规章··············································································································56

一、反行政垄断规章的作用 ·········································································································56

二、执法规章的效力 ·····················································································································57

三、新旧暂行规定 ·························································································································58

四、新暂行规定规制的六类行政垄断 ·························································································61

第三章 反行政垄断执法 ·················································································62

第一节 反行政垄断执法机关······································································································62

一、国务院反垄断委员会 ·············································································································62

二、国家市场监管总局 ·················································································································64

三、省级市场监督管理部门 ·········································································································70

四、人民法院 ·································································································································71

第二节 行政垄断主体及管辖 ·····································································································72

一、行政机关 ·································································································································72

二、法律、法规授权的组织 ·········································································································74

三、立案管辖 ·································································································································77

第三节 法律适用··························································································································78

一、法条竞合 ·································································································································78

二、反垄断法与反不正当竞争法 ·································································································82



IX

三、反垄断法与电子商务法 ·········································································································86

四、反垄断法与招投标法 ·············································································································89

五、《政府采购法》与《反垄断法》 ·························································································91

六、《反垄断法》与《知识产权法》 ·························································································93

七、《反垄断法》与《消费者权益保护法》 ·············································································93

八、《外商投资法》与《反垄断法》 ·························································································94

九、《反垄断法》与《公用企业行业管制法》 ·········································································94

第四章 行政垄断与滥用职权 ········································································104

第一节 滥用职权与滥用行政权力····························································································104

一、滥用职权的起源 ···················································································································104

二、滥用职权的含义 ···················································································································105

三、滥用职权的几种学说 ···········································································································106

四、滥用行政权力的立法规制 ···································································································106

五、“滥用行政权力”的判定 ···································································································107

第二节 滥用职权的司法实践·····································································································111

一、滥用职权的司法认定标准 ····································································································111

二、2015年前的司法裁判规则 ··································································································112

三、司法裁判的另一种逻辑分析 ·······························································································115

第三节 滥用职权与超越职权····································································································118

一、滥用职权与超越职权混用 ···································································································118

二、超越职权与认定行政垄断 ···································································································119

三、行政指导型垄断 ···················································································································121

第四节 行政行为明显不当········································································································122

一、明显不当的司法审查 ··········································································································122

二、对“明显不当”的解释 ·······································································································123

三、明显不当与滥用职权的区别 ·······························································································123

四、明显不当在司法实务中的适用 ···························································································124

第五章 行政垄断的表现形式 ········································································135

第一节 行政垄断专章立法········································································································135

一、《反垄断法》 ·······················································································································135

二、《暂行规定》 ·······················································································································135

第二节 行政强制交易················································································································136

一、行政强制交易的规定 ···········································································································136



二、行政强制交易的类型 ···········································································································136

第三节 地区封锁························································································································138

一、地区封锁立法 ·······················································································································138

二、妨碍商品自由流通行为的类型 ···························································································139

三、排斥限制外地经营者招投标 ·······························································································140

四、排斥限制外地经营者在本地投资 ·······················································································141

第四节 行政强制限制竞争········································································································141

一、行政限制竞争的规定 ···········································································································141

二、行政限制竞争的类型 ···········································································································144

第五节 其他限制竞争行为········································································································145

一、其他限制竞争的规定 ···········································································································145

二、其他限制竞争的类型 ···········································································································145

第六章 行政垄断的认定 ···············································································147

第一节 行政垄断的构成要件····································································································147

一、“四要件”说 ·······················································································································147

二、司法“三要件”说 ···············································································································147

三、滥用行政权力与行政垄断 ···································································································150

第二节 行政垄断的认定规则····································································································150

一、常用认定规则 ·······················································································································150

二、行政垄断引发的经济垄断 ···································································································152

三、对《反垄断法》第37条中“规定”的理解 ·····································································153

第三节 反行政垄断违法判定的原则························································································155

一、本身违法原则 ·······················································································································155

二、合理分析原则 ·······················································································································158

三、行政执法原则的适用 ···········································································································161

四、经济垄断的司法审查标准 ···································································································163

五、特许经营与行政垄断 ···········································································································166

六、行政垄断的例外和豁免 ·······································································································167

第七章 排除和限制竞争的认定 ····································································170

第一节 行政执法与司法裁判····································································································170

一、行政执法中的排除限制竞争 ·······························································································170

二、司法裁判中的排除限制竞争 ·······························································································171

第二节 排除、限制竞争的评估方法························································································174



一、经济学分析 ···························································································································174

二、行政垄断效果的评估 ···········································································································176

三、限定交易行为的反垄断法分析方法 ···················································································179

第八章 行政垄断与受益经营者 ····································································181

第一节 受益经营者····················································································································181

一、受益经营者的法律规制 ·······································································································181

二、受益经营者的类型 ···············································································································184

第二节 行政垄断引发经济垄断处罚························································································188

一、作为经济垄断处罚 ···············································································································188

二、对受益经营者未处罚 ···········································································································191

三、行业协会参与度高 ···············································································································192

四、行政强制性违法特点 ···········································································································194

第三节 行政强制受益经营者的法律责任················································································195

一、违法处罚多样性 ···················································································································195

二、行政强制的经营者举证 ·······································································································196

三、法律适用问题 ·······················································································································197

第九章 反价格垄断 ······················································································198

第一节 价格垄断的法律规制····································································································198

一、价格垄断立法 ·······················································································································198

二、反价格垄断执法现状 ···········································································································200

三、不正当价格行为类型 ···········································································································201

四、《价格法》与《反垄断法》的差异 ···················································································204

第二节 价格欺诈行为················································································································205

一、价格欺诈行为定义 ···············································································································205

二、价格欺诈和价格垄断认定 ···································································································205

三、价格协同行为的认定 ···········································································································206

第三节 不公平要价····················································································································208

一、不公平要价的立法规制 ·······································································································208

二、不公平要价的判定方法 ·······································································································209

三、不公平要价判定考量因素 ···································································································210

第四节 反垄断法与价格法的适用····························································································210

一、反垄断法与价格法适用现状 ·······························································································210

二、反垄断法和价格法的差异性 ·······························································································211



三、《反垄断法》与《价格法》的适用原则 ···········································································216

四、法律冲突的协调 ···················································································································221

第十章 行政垄断法律责任 ···········································································227

第一节 行政垄断的行政责任的立法························································································227

反垄断法规定及其修订 ···············································································································227

第二节 执法建议权····················································································································230

一、建议权立法的争议 ···············································································································230

二、建议权的上级机关 ···············································································································232

三、建议权的适用 ·······················································································································234

第三节 其他行政责任················································································································236

一、行政处分 ·······························································································································236

二、责令改正 ·······························································································································237

三、行政垄断与国家赔偿 ···········································································································242

四、实行地区封锁的行政责任 ···································································································243

第四节 行政垄断信息公开········································································································244

一、信息公开立法 ·······················································································································244

二、信息公开的例外 ···················································································································245

第十一章 反行政垄断行政诉讼 ····································································248

第一节 反行政垄断行政诉讼的概念·······················································································248

一、行政诉讼法对行政垄断的规制 ···························································································248

二、早期的反行政垄断诉讼 ·······································································································248

三、不作为行政垄断 ···················································································································251

第二节 反行政垄断诉讼主体及举证························································································252

一、起诉与案由 ···························································································································252

二、被告主体资格 ·······················································································································258

三、行政诉讼第三人 ···················································································································259

四、反行政垄断公益诉讼 ···········································································································259

五、反行政垄断诉讼举证 ···········································································································260

第二节 反行政垄断的受案范围································································································263

一、具体行政行为 ·······················································································································263

二、抽象行政行为 ·······················································································································267

三、程序性行政行为 ···················································································································268

四、公平竞争审查的救济 ···········································································································270



五、行政诉讼的审查范围 ···········································································································271

六、行政诉讼时效制度 ···············································································································274

第三节 反垄断行政诉讼管辖····································································································275

一、反垄断行政诉讼的级别管辖 ·······························································································275

二、行政处罚类行政诉讼 ···········································································································277

三、反行政垄断行政诉讼管辖 ···································································································279

四、其他反垄断行政诉讼 ···········································································································280

五、反垄断民事诉讼管辖 ···········································································································281

第十二章 反行政垄断合规 ···········································································283

第一节 公平竞争审查制度········································································································283

一、审查意义 ·······························································································································283

二、审查范围 ·······························································································································284

三、审查方法 ·······························································································································285

四、第三方评估 ···························································································································286

第二节 公平竞争审查制度困境································································································287

一、公平竞争审查与反垄断立法 ·······························································································287

二、自我审查为主的缺陷 ···········································································································287

三、信息公开不透明 ···················································································································288

四、公平竞争审查制度的适用 ···································································································289

第三节 反行政垄断风险防范····································································································290

一、行政垄断预防 ·······················································································································290

二、受益经营者垄断风险预防 ···································································································293

后记 ···············································································································297



接轨最新立法 理论与实务并重 

林文 单位：北京金诚同达（上海）律师事务所  职务、职称：合伙人律师 性别：男 年龄：49 专业：经济法 学历：硕士 研究领域：经济法 研究成果：《中国反垄断行政执法和司法报告（2016）》《中国反垄断行政执法报告（2008-2015）》等。