竞争秩序引入私法秩序之探讨——以垄断协议的私法效力之争为视角

经济法是为弥补私法对社会整体经济秩序调整之不足而产生的。传统学说强调经济法对私法的补充功能，鲜有强调两者的协调性及私法对经济法的补充作用，从而导致一些危害市场竞争秩序的行为被反垄断法所禁止，但却被私法认可的矛盾境遇。然而，经济法维护的竞争秩序恰恰也是私法所倡导的财产流转秩序的前提和基础。经济法中的社会公共利益与私法中公序良俗所倡导的社会经济秩序相统一，因此可以通过私法中的公序良俗原则将竞争秩序引人到私法秩序，从而确保经济法与私法在规范危害市场竞争秩序行为时的统一。同时，为了保障私益救济对公力执行的补充作用，经济法应为私法权益的实现提供一定的制度支撑。

DISCUSS ON COMPETITION ORDER ESTABLISHED IN PRIVATE LAW ORDER --AT THE ANGLE OF VIEW OF THE DEBATE OF PRIVATE LAW EFFECT OF MONOPOLY AGREEMENT

The producing of Economic Law is to make up the insufficient of the adjustment of the Civil and Commercial Law on the overall economic order.The traditional doctrine only emphasizes the supplementary function of Economic Law on the Civil and Commercial Law,seldom emphasizes the coordination of both and the Civil and Commercial Law in the complementary role of economic law,leading to the contradictory circumstances that some acts which harm the order of market competition are prohibited by antitrust laws,but are recognized by private law.However,the order of competition which the Economic Law wants to maintain is exactly what private law advocates,and it is also the premise and basis of property circulation order.In order to achieve the coordination and facilitation of Economic Law and private law to maintain the market economic order,we should introduce competition to the private law order through the bridge of public order and morals in private law.At the same time,Economic Law should also provide some institutional support for the realization of the interests of private law.