回应商业模式创新的市场规制理论  

A Market Regulatory Theory in Response to Business Model Innovation

作　　者：宋亚辉[1] Song Yahui

机构地区：[1]南京大学法学院

出　　处：《环球法律评论》2022年第4期113-128,共16页Global Law Review

基　　金：2021年度国家社会科学基金重点项目“适应商业创新的市场规制体制研究”(21AFX020)的研究成果。

摘　　要：商业模式创新可谓一日千里,但法律的回应却举步维艰。面对商业模式新旧更迭引发的“规制颠覆”问题,市场规制法该如何作出回应?这给传统规制理论提出了极大挑战。学界从规制理念革新、规制工具调整角度提供了应对策略,新近研究还尝试就“市场规制法如何回应商业创新”问题搭建普适性的分析框架。但该分析框架并不完整,体系上还需补充市场规制的实体主义分析视角,将既有分析框架向上、下两个方向延伸,以覆盖市场规制的三个普适性问题:一是新商业模式是否需要法律规制;二是如若需要规制,规制体制的选择应当“沿用旧制”还是“重建新制”;三是如若“重建新制”,方法论上该如何构建。由此形成的升级版分析框架在体系上更加完整,使商业创新领域的规制体制实现动态化改造,有助于回应规制对象的动态变化。Business model is changing rapidly under the modern market economy, but the legal system has historically been very slow to respond to such changes. The main cause of this problem is the stability of the legal system and the written laws, which makes it difficult for them to adapt to new things. This paper focuses on the question of how regulatory law should respond to the innovation of business model. Existing researches show that scholars at home and abroad have conducted in-depth studies on the topic of adoption of new regulatory approach and the choices of regulatory tools in response to the challenges of “market failure” and “regulatory disruption” caused by technological innovation and business model innovation. However, the study on the general regulatory analysis framework in response to the business model innovation is relatively weak. As an important breakthrough, the recent research on the “three-step analytical framework under the principle of regulatory neutrality” from the perspective of methodology has filled in the gap and promoted the development of the new academic branch of regulatory law from germination to maturity. However, it must be admitted that this analytical framework is incomplete. Any foundational analytical framework needs to be developed and further improved in practice and academic debate. In the face of new business models emerging endlessly under the condition of market competition, a general analytical framework should cover at least the following three questions:(1) The first question that legislators and regulators should answer is whether a new business model needs to be regulated by law, which is the threshold question of market regulation.(2) After entering the threshold, the second question is how to choose between “following the old legal system” and “building a new system” in the process of making and application of law.(3) If a new regulatory regime is needed, the question is how a new legal system can be built in terms of legislation. A complete an

关 键 词：商业创新 规制理论 规制理念 规制体制 

分 类 号：D912.29[政治法律—民商法学]