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Comparative Research Leniency Program Of Anti-monopoly Law

Posted on:2010-04-14Degree:DoctorType:Dissertation
Country:ChinaCandidate:S Y QuanFull Text:PDF
GTID:1116360302457449Subject:Economic Law
Abstract/Summary:PDF Full Text Request
Anti-trust law enforcement experience shows that cases about anti-trust agreement are the main job for anti-trust authorities. As KFTC declared that in the recent 10 years, the investigeted cases about cartel agreement added up to 401, which is larger than the amount of abuse dominent position(51) adds enterprises merger(362) cases. Thus, the anti-cartel extent of a country will directly effect the actual effect of a country's anti-monopoly law. Cartel in the modern time always takes subtle forms, how to find them timely and effectively is the most important thing in cartel-regulation. In view of the practice of competion law enforcement, the effective way to anti-cartel is to authorize inverstigation power to the authories and to introduce leniency programes. Leniency programes bases on the coconspirators'Prisoner's Dilemma and to effort to make them to be the "whistle-blowers" to report the illegal conducts to the authorities. If in compliance with the statutory conditions, they will be exempted form criminal prosecution or fines.Although Leniency Program in running is faced with many criticism and questions, such as does not have legitimacy in morality, does not have justice in law, limits the freedom of contract and easy to capture effects in practice, but the experience of anti-monopoly law enforcement in many countries has shown that Leniency Program is the most powerful instrument to combat cartel. Professor Ky P. Ewing,Jr of USA, in Competition Rules for the 21st Century:Principles from America's Experiences said, "Leniency Program is the engine in detecting cartel cases", and "the emergence of Leniency Program makes antitrust law really start fresh vigor. " In this respect, the effect of anti-catel depends largely on the actual effect of leniency program enforcement, hereby, why leniency program is always the hot issue in anti-monopoly law theory and practice.The mechanism of leniency program is based on severe sanctions, fear of detection and the transparency of enforcement policies. Severe Sanctions includes treating cartel activity as a crime, the perceived risks must outweigh the potential rewards, corporate amnesty can mean zero fines and no jail and so on. To attain deterrence effect of catel members, it's necessary to build a strong enforcement record, to pursue the principle of speed-win, and to eliminate the Safe Harbors of cartel. The transparency in enforcement policies is intended to enhance the stable expectation of an informer, it includes that both specific application conditions and specific application procedures must be transparent.In 1978, America established Leniency Program, but what makes key point for the global development of Leniency Program is of America in 1993. The revision of the America's Leniency Program in 1993 achieved great success, which became the main incentive for other countries to establish Leniency Program.Until 2007, there have been more than thirty countries(regions) that have established Leniency Program.Although different countries(regions) belong to different families of law and have their own particular legal systems which lead to different design of Leniency Program, from the legislation of Leniency Program in different countries we can find that the design of these mechanisms either are mould out of America Department of Justice's Leniency Program, or tend to close up to it. This trend of close up is because every country(region) has realized that cracking down the international cartel needs the corporation of anti-monopoly authorities all over the world. So Leniency Program of every country develops with the spirit of consistency with other countries'policies.We believe that with the spirit of consistency, Leniency Program of different countries will be convergence finally,which is the result of the corporation of cracking down the international cartel and the necessity of modern Leniency Program.Leniency Program is a vital and complecated issue. We should pay much attention to the prerequisite of leniency program in the legislation, because it relates to the the stability and predictability of this program. Generally speaking, according to the Leniency Program, the revelator will be exempted or mitigated of its punishment. Leniency Program also used in company but its use is different from the individual. At the scope of responsibility, Leniency Program has differences among criminal liability, administrative liability, and civil liability. Based on the above factors, the application of Leniency Program has different procedures. Despite the existence of specific procedures is different in countries, but the requirement of reporter——honest, comprehensive, continuing with the investigation will never change in different countries.Under the framework of "China Antimonopoly Law", there is only one rule about Leniency Program, and the environment of enforcement is not good enough including the lack of competition culture, the insufficiency of the knowledge of cartel's harm, the inadequacy of desire for antimonopoly enforcement, the shortage of experience and so on. Nevertheless, we still need to find out the trace of Leniency Program in Chinese legal culture and some experience accumulated in the practice of regulation of Cartel in China which not only protects the competition and benefits of customers, but also makes the officer realize the harm of Cartel at some extent. All of this will be good for the enforcement in the future.By studying section 2, Article 46 of Antimonopoly Law, we believe that Chinese leniency program is inadequate. These deficiencies are concretely manifested in the following aspects:①the applicable conditions are not specific;②the applicable procedures are non-transparent;③discretionary power of antitrust enforcement authority is huge;④types of penalty relief are uncertain;⑤extent of relieves is uncertain and so on. Before establishing future leniency program, it should be an important task of Chinese antimonopoly enforcement to create leniency program enforcement environment and antimonopoly enforcement environment. Specifically, when revising leniency program, China could choose the way that Antimonopoly Committee frame implementation details of Chinese antimonopoly leniency program, adherence to the "carrot and stick" principle. Amendments of specific content include:(1)applicable responsibility:administrative fine mainly with criminal punishment as supplement; (2)applicable objects: the operator-based and personal supplement; (3)regarding the precondition of application, attention should be paid to time point of stopping illegal action, time of filing application for exemption from punishment, the nature of evidence, the degree of assistance of investigation, whether application should be brought forward seperately, total number of operators and extent of relief and related questions. At the aspect of application procedure, attention should be paid to specific design of registration system, review system and tracking system. Finally, the system should be matched by plus leniency program, increasing punishment system, confidentiality obligation and so on.
Keywords/Search Tags:Anti-monopoly Law, Monopoly Agreement, Leniency Programe, Camparative Research
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