Antitrust Commitment System

As a way of antitrust enforcement reconciliation, Generally Commitment ofAntitrust Law refers to that, the business operators under investigation makes acommitment which can eliminate adverse impacts on the competition before theanti-monopoly enforcement authority makes final decision. And anti-monopolyenforcement authority can therefore suspend the investigation. If operators can fullyfulfill commitment, the anti-monopoly enforcement authority may make the decision ofterminating investigation. Commitment is the system which emphasizes on theconsultative dialogue between the anti-monopoly enforcement authority and operators.It has become the trend of modern antitrust enforcement. In the United States, it has“consent decree”,“consent order”. In Japan, it has “advice on”,“agreed on”. And in theEuropean Union, it has “commitment decision”. Although the formulation of thesystems is different, they are a kind of commitment actually.The author thought that the antitrust commitment system is so popular, because itcan implement the law value, economic value and social value of antitrust better thantraditional antitrust enforcement. But things always have two sides. Behind thepluralistic value of Commitment, we also cannot ignore its problems, such as how toconstraint the discretion anti-monopoly law enforcement, how to protect the interest ofthe public and the interested party, how to guarantee the fulfillment of commitments,how to guarantee the deterrence of antitrust enforcement.Based on the above analysis model, from general to specific, the author raises theregulation of commitment in our country. The commitment is regulated mainly in thearticle45of “Anti-monopoly Law”, and is detailed in department rules and regulations,But the regulations present the characteristic that heavy entity and light procedureoverall, mechanism is not sound, the power of the anti-monopoly enforcement authorityis so big that the negotiation between the authority and the operators, and multiple lawenforcement authorities apply the same mechanism.Finally, in order to overcome the system risk of commitment in our country, theauthor proposes to the outlook of the operation mechanism of commitment in China bythe perspective of the economics of law and through the cost-benefit analysis and game analysis. Specifically, on the system startup, the system startup mode, the applicablescope, applicable conditions should be explicit and rationalized. On the systemapplication, the public interest should be protected by public and public review system,and the third party interest should be protected by guaranteeing participation right andremedy right. In the process of performance, regular report system of operators,temporary supervision institutions and diversified way of punishment can be used tosupervise the operators to fulfill commitments; in order to guarantee the reliance interestof operators and supervise enforcement authority, it can clear conditions of restoringinvestigation and set up the judicial relief procedure.