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在我国反垄断法的起草过程中,有人提出应在草案第1条“为制止垄断,维护公平竞争,保护经营者、消费者的合法权益和社会公共利益,保障社会主义市场经济健康发展,制定本法”的规定中,去掉“公平”二字。其理由是,如果中国反垄断法的宗旨是维护公平竞争,那就不能区别反垄断法和反不正当竞争法。但也有学者提出,第一条中不应当去掉“公平”二字,而是应当增加“自由”二字,因为反垄断法不仅维护公平竞争,反对不正当竞争,而且更重要的任务是维护自由竞争,反对限制竞争。公平竞争和自由竞争是否是不同的理念?不正当竞争和限制竞争有那些区别?区别它们的意义何在?这是竞争法学者应当研究的一个理论问题。
In the drafting process of our country’s antitrust law, some people proposed that Article 1 of the draft should “protect the interests of the socialist market economy in a bid to stop monopoly, maintain fair competition, protect the legitimate rights and interests of operators and consumers and public interests, Formulation of this Law ”provisions, remove “ fair ”two words. The reason is that if the purpose of China’s antitrust laws is to maintain fair competition, it can not distinguish between antitrust and unfair competition laws. However, some scholars also suggested that the phrase “fairness” should not be removed in the first article, but the word “freedom” should be added because the antitrust law not only protects fair competition but also unfair competition, and more importantly The task is to maintain free competition and oppose the restriction of competition. Is fair competition and free competition different concepts? What are the differences between unfair competition and restricted competition? What is the difference between them? This is a theoretical issue that should be studied by competition law scholars.