A Study Of The Power Of The Trade Association

Since the 1990s, China's mechanism of industry and commerce has been involved in a new round of reform. It transforms the former department management mechanism to trade management mechanism in almost all of the industrial and commercial sectors. The transformation indicates that the government's function is shifting to macro control. Self-disciplined association management is more valued. Thanks to the new trend, business associations are going to possess more power. In this situation, various key issues arise in this reform process. For instance, what kind of power does the association possess? How does the power function? Will the power bring possible problems? What might have caused those problems? How to deal with them? In this dissertation, the above mentioned issues will be analyzed and discussed in details.A typical Chinese trade association is a non-governmental organization set up by a group of individual enterprises who voluntarily enter into an agreement to maintain self-discipline management and safeguard welfare of member enterprises. The Association Authority means the function, among the guild's numerous functions, which has coercive power towards a certain association's members. It mainly includes the trade self-discipline authority which is granted by and the trade management authority which is granted by the nation. The trade management authority at the root is the national administrative authority which owns characteristics just like the general administrative authority. The validity of such trade management authority stems from the modern theory of separation of administrative powers. However, the trade self-discipline authority is not the national authority but the self-disciplined authority granted by regulations of a certain association. Therefore, the trade self-discipline authority is mainly featured by effectiveness limitation, system profiteering and dual characteristics. The validity of the trade self-discipline authority comes from a consensus among members. But deep inside, it is motivated by democracy, constitutionalism and efficiency.In China, the trade associations are voluntary but often stimulated by the government. Chinese trade associations have to face a variety of severe running rules monitored by the government. In this context, the mechanism of allocation, running and supervising of a certain association are far from being perfect. The problems in the mechanism of the power coming from the state include two aspects:the authorization and the entrusting are unclear and the power corruption. The problems in the mechanism of the power coming from the constitution of the trade association also include two aspects:the entrusting of the constitution is unclear and the powers are always neglected. The two kinds of powers face the same problems when they are being supervised. The inner supervising lacks motivation; the administrative supervising is excessively strict; the judicial supervising is incomplete.This dissertation analyzes three major reasons leading to the current status of the trade association in China. First of all, business associations acts an inadequate role. In other words, the government actually plays an inappropriate role in governing the trade association. From the essence of the trade association, which is the representative of enterprises, its primary function is safeguarding the profit of enterprises. But the government is accustomed to treat it as a supplementary administrator. The business association therefore is but a junior government in the eyes of enterprises. Secondly, the function of the business association is quite ambiguous. The government has got used to managing enterprises directly, ignoring the existence of the association. And enterprises therefore are more willing to talk to the government directly rather than turning to the association. Thus, the function of the association is but a puppet organization. In addition, the legitimacy of the power of the trade association has flaws. That is to say, the power of the trade association can not attract enough trust. Because of its empty form, the association lacks the support of the law. No law grants the association any authority to practice. Although enterprises show a certain degree of respect to the association for its junior government's name, they do not admit the real power of the association. If we go deeper, we can easily find that the real problem lies in the relationship between the government and the association.Based on the above mentioned reasons, the precondition of promoting the current situation of the association is that we have to reshape the relationship between the association and the government. Since reform and opening to the outside world, with the promotion of economy development and political democracy, the relationship between nation and social takes place a comparatively large variety in our country. The government begins to delegate power in each realm, such as in politics, economy and culture, etc, A large number of civil organizations now start to play a more and more important role in society public business. Social governance mode is forming such a structure that " taking government as dominance, government and civil organization cooperate based on division of labor". Under such kind of environment, the government and trade associations will start the government of professional management business together that " cooperation based on division of labor under government's dominance". For the insurance of trade association exerts function efficiently as a manager, the nation should reform current manage system to trade association, and strengthen delegating power. The improvement of the institution of the power of the trade association must follow three principals:in line with cooperation based on division of labor under government's dominance; self-discipline of the trade association; linking up with the existing institution.In order to perfect the power system of the association, we firstly need to clarify the content of the power itself. As for the management power, we ought to complete the authorizing and governing organism when we are not certain about the type and quantity. As for the power of self-discipline, such as the power of autonomy rule constitution, dissension regulation, internal sanctions and some standards formulation, we have to consider the content and practice under the big picture of the current laws in China. And then clearly define them in related regulations. The second step is standardizing the running of the power of the association. We mainly need to optimize the governing system of the government on the association and strengthen the juridical person managing system. The goal is that we give the association enough power to discipline themselves with a certain degree of national governing. The foundation to the administrative supervision system of the thesis is mainly presents in two aspects i.e. canceling all the functional departments'functions except of "reviewing establishment" and enduing the power of reviewing and record to trade association's standard documents. And finally we need to establish the third party evaluation system under the dominance of government departments. In the internal supervision system of trade association, firstly, we need perfecting its governance system of juridical person, especially supervisor meeting system. Secondly, we need perfecting trade association's internal democracy mechanism. The supervision system includes an establishment of the administrative reviewing proceedings, an judicial reviewing system, and the supervision from department who authorize or delegate the power. The department should clearly authorize or delegate the power, and check the running of the power, review the power as the reviewing department. The court should be the supervisor through administrative proceeding, which include checking the running of power and the inner rules. The associator can go to court, when his fundamental right was trespassed by trade association and could not be relieved through inner proceeding. In order to no interference into the inner running of the trade association, the court should check the power only in aspects of its procedure and validity, without judgment on the concrete right and obligation. The verdict should not have compulsion, and only have three forms i.e. legality, total or partial cancelling, rejecting the claim. The court can check the inner constitution of the trade association, and also only in aspects of its procedure and validity.What's more, this dissertation also puts forward certain views on perfecting Anti-monopoly Law to regulate business association's behavior of using its authority to restrict competition. It includes that types of restriction behavior in the industry need to be clarified, prediction controlling procedures need to be completed and exemption terms should also be clearly listed.