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A Study On The Liability System Of Antimonoply Law

Posted on:2012-12-30Degree:DoctorType:Dissertation
Country:ChinaCandidate:G F DingFull Text:PDF
GTID:1116330338471065Subject:Economic Law
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The adjustment of social relations and the construction of law order are inseparable from the establishment of specific norms of rights and obligations, but also depend on the building of a sound liability system to protect law enforcement. To maintain order and justice in a country, it is most essential for its legal systems to set a scientific and rational legal liability system, for the purpose of restraining, punishing violations, and ensuring the legal norms to be implemented, complied and enforced. A mandatory legal sanction and accountability system is even one of the Prerequisites for the existence of a legal system. Accompanied by the functions of constraining and curbing the abuse of state power, legal responsibility also expresses a restriction, denial, protection, security and respect for the individual behavior freedom. The fundamental purpose of the legal liability system is to achieve the core content of the legislation and basic concepts, whose detailed responsibility systems are an indispensible part of the anti-trust law systems. A free and fair competition order is the basic premise for the sound operation of the market economy, a security for the enhancement of a country's overall national economic strength, and fundamental goal of antitrust laws. Without a complete, scientific and feasible antitrust liability system, antitrust Substantive norms and procedural rules will be difficult to strictly adhere to and anti-monopoly legislation targets will not be truly achieved. Therefore, it can be seen that the construction of a comprehensive, complete and rational antitrust liability system will help protect the goals of anti-monopoly legislation, more conducive to the effective implementation of anti-monopoly law. Even, we can say that, the authoritative status of antitrust law, to a large extent, originates from the well-design and specific arrangements of its liability systems.In a market economy, the antitrust law is the patron saint of economic freedom and democracy is an important initiative in regulating the market competition order. Measurement and evaluation of the value and appropriateness of the anti-monopoly legislation contents are mainly embodied in reflected in the legal will and interest orientation reflected and protected by the anti-trust law. However, monopolistic behaviors tend to distort market competition mechanism, undermine the healthy operation of the economy, and damage the economic benefits of market players involved, causing, particularly, consumers'loss of the rights of fair trade right and free choice as to fail to play their roles as a market selector and jury, and the impairment of the overall social consumer welfare. Evaluation of the implementation of AML system is closely related to the construction of its liability system, and how to convert a black-and-white anti-monopoly provisions into a sharp sword to block monopolistic behavior, the key factors are the improvement and implementation of antitrust law liability systems. And any anti-competitive practice in the market should bear its corresponding responsibility. For the illegal monopoly behaviors, antitrust liability systems provide the corresponding appropriate, flexible relief measures. The functions performed by the antitrust liability systems are the condemnation, negation, and containment of trust and monopoly behaviors, and more importantly, is the use of mandatory and law-based sanction measures to negate substantial restriction competition behaviors, and to provide appropriate relief to the loss of the victims, and deter other potential violation players and to prevent, avoid and reduce the monopoly of other market players so as to maintain a free and fair competition order.At present, more than 100 countries and regions have enacted anti-monopoly laws, and accordingly set their liability regimes. In China, Chapter VII of its anti-monopoly law just specifies in antitrust liability, but there are still many imperfections in it. The problems are mainly reflected on the aspect of civil liability, of administrative liability, of criminal liability, and other multi-level, multi-areas of liability. Monopoly behaviors usually receive adjustment from the comprehensive anti-monopoly legal system such as civil liability, administrative liability and criminal liability, the sanction forms including civil sanction, administrative sanction, and criminal sanction. However, if the liability system just stays in the principle and broad-nature level, it will not achieve the rational, well-coordinated link between the liability systems, and its value targets either. Therefore, to build our scientific and rational, coherent liability systems of antitrust law, we should start off from the following aspects. First, in doing the research, scientific and feasible research methods should be applied. The Specific research methods adopted in this paper include dialectical materialism, comparative analysis, logical reasoning, historical analysis, case analysis, chart data, economic analysis, holism analysis, with a combination of the specialized research methods and law research methods. Secondly, specific and in-depth description and analysis of the anti-monopoly law liability systems from major countries and regions should be made, from the perspective of the historical development, for the advantage of learning from the legislative experience of other countries. Finally, discussions on current China' antitrust law liability system and its implementation forms are done, including an in-depth and comprehensive exposition in its civil, administrative and criminal liabilities, and concrete suggestions on how to improve China's current anti-monopoly law liability systems.Antitrust law possesses property of private and public law fusion, which determines the liability system has the features of being integrated, comprehensive, systematic, compensatory, deterrent, punitive. The damage compensation-cored civil liability, the administrative fine-cored administrative liability, and the criminal detention-cored criminal liability together constitute the basic system of our country's antitrust liability systems. Antitrust civil liability, with civil liability as its theoretical premise and content base, has its own characteristics and significantly differs from the characteristics of civil liability, and is a refinement and extension of the civil liability. China's anti-monopoly law civil liability should introduce the punitive damage compensation system and continue to improve the incentives of victim implementation antitrust civil system. The function of punitive damage compensation system is to punish and retaliate malignant monopolistic behaviors and prevent any future recurrence of the similar kinds. To improve the private antitrust litigation, the scope of the plaintiff should be specified, and the plaintiff' main qualifications should not be limited to the operators who are directly offended by the violations, and appeal right should also be given to other market players who have been affected by the monopoly action. The design of the antitrust civil liability should follow cost-benefit ratio principle and dynamic quantification principle and the compensations for the market players or other operators who have suffered consecutive damages should be within the maximum compensation amount, so as to encourage market players bring the damaged antitrust action for damages and to protect the competitive interests of various market players.In its administrative liability part, China's anti-monopoly law should continue to regulate and optimize its administrative sanction responsibility. Antitrust administrative liability is mainly for monopoly actors, and includes both administrative sanction responsibility to be assumed by common managers and competitors and administrative liability to be assumed by administrative bodies who have performed restrictive competitive practices, but excludes their matching civil liability and criminal liability. The functions of administrative liability are to strengthen various types of administrative sanctions, to regulate the duties and powers of the anti-monopoly law enforcement agencies, and to negate, deter and contain various types of violations, in order to achieve the social and public value goals of antitrust law. The deterrence should be strengthened of anti-monopoly law enforcement agencies to implement administrative penalty, and in particular, their probability of discovery of monopolistic behavior improved, to increase the effectiveness of the administrative fine implementation. Generally speaking, excessive administrative fines exceeding the damage caused by monopoly behavior may be considered unfair, but if the fine is only for part of the monopoly actors, it may also be considered unconscionable. We know from the theory of Optimal Deterrence that the amount of administrative fines and the possibility for penalties actually being enforced (the possibility of punishment) are often closely related to and complemented with each other, so the maximum range of administrative fines should be computed and set scientifically. The scope of responsibility undertaking body should be clarified, and the width and intensity of the administrative sanction responsibility content be strengthened, and ways and means of sanctions be properly expanded. Acts of administrative monopoly should also be explicitly included in the scope of administrative litigation cases, with its specific judicial review procedures to be built, and in particular, to the abstract administrative acts restricting competition under certain positioning order should be clearly defined to be subject to judicial review.In its criminal liability part, China's anti-monopoly law criminal liability should be reasonably made and carefully applied. It has become a widely-accepted practice for a country to set its anti-monopoly criminal liability system. Criminal accountability for serious monopoly acts is inevitable, and the creation of criminal sanctions can improve the predictability of criminal penalty, and the most deterrent and severe criminal penalties can, to the maximum extent, curb, negate and even prevent the harm to society caused by monopolistic behaviors. Penalty Modesty principle with the criminal law requires the minimization of the scope of criminal penalty, and is only applied when other means of legal responsibility fail to achieve the intended effect. Focus object of criminal liability sanction is not the monopolistic state, but the behavior, especially serious illegal monopolistic behavior. Responsibility scope with criminal penalties should be strictly limited to those with a serious, clear nature of monopolistic behaviors, in particular, to those such as joint restricting competition expressed as a fixed price, market division, output restriction, abuse of dominant market position, and the administrative monopoly. The sanction object should be limited to those with obviously illegal, destructive and serious monopolistic behaviors, but not the general, non-important, and non-illegal monopoly behaviors. Besides, we should learn from developed countries'concept of Deserving Penalty, take legislative measures of serious monopoly acts deserving serious and further clarify and refine the boundaries of crime monopoly and non-crime monopoly, so as to enhance the intensity of criminal sanctions.
Keywords/Search Tags:Antimonoply Law, Liability System, Administrative Liability, Civil Liability Criminal Liability
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