Study On The Soft Enforcement Of Antitrust Law

In order to carry out the complex task of antitrust law, besides the ordinary enforcement measures including litigation and traditional administrative mandatory enforcement methods, a series of soft enforcement mechanisms, such as guidance, suggestion, advising and negotiation, have been designed around the world. In most developed countries, such as US, Canada and Japan, this kind of soft enforcement has been used more frequently than the litigation and traditional mandatory administrative enforcement methods, and has taken a major role. The soft enforcement is a "responsive" enforcement method in nature, which differ from other enforcements because it "does not rely on the coercive state power". In the soft enforcement of antitrust law, although different country takes the different specific measures, there always are the measures including guidance, consent, negotiation, exposure, and so on.The transform from the state control to the state rule in the public sphere management brings not only the reform of the administrative enforcement methods, but also the development chance for the antitrust law soft enforcement. The complexity and specialty of the antitrust issues needs a professional enforcement organ to deal with the antitrust business, so the independent economic governing agency for antitrust created, which fulfill the subject demands for the soft enforcement of antitrust law. The soft enforcement of antitrust law is a great challenge to the traditional administrative enforcement. During the process of soft antitrust enforcement, the construction of the antitrust rules by the antitrust organ is not the decision-making style but a guidance style; the discretion of the antitrust organ will take the way of negotiation, consent promise, leniency, etc., which is an enforcement discretion under the communicative rationality, and this discretion emphasizes the non-unidirectivity of the power with the characteristic of "provisional consensus", so it has the legitimacy based on the identification between the parties. In dealing with the monopoly conduct, the soft enforcement of antitrust law is a simultaneous direct regulating and not a liability investigation afterwards, which means to include the monopoly conduct into the scope of supervision and to monitor and regulate the conduct in the long range in order to seek advantages and avoid disadvantages.The fundamental reason for the development of the antitrust law soft enforcement is the uncertainty of antitrust law. The uncertainty of law means that there is no sole correct answer to a legal issue or to the application of a rule to the facts of a case, and this phenomenon is particularly common in the field of antitrust law. The uncertainty of antitrust law lies on the fuzziness of the many self-contradictory "antitrust double-talk", which appeared frequently in the judgment of the antitrust litigation. There are several reasons for this phenomenon including the vagueness of the antitrust rule itself, the widely application of the principle of the rule of reason, the contradiction of the multiple aim of the antitrust law, and the complexity of the economic theory of antitrust. The theory of the optimal law, the theory of imperfection of law, and the theory of law enforcement incentive have all proved that in the situation of uncertainty of law, the administrative enforcement is more suitable than the judicial enforcement. That means the soft enforcement mechanisms have more advantages than the private enforcement as the special administrative enforcement. The private enforcement cannot realize the aim of "protect of the competition, not the competitor" for the antitrust law, and cannot realize the multilateral goals of the antitrust law in the perspective of the unique uncertainty of antitrust law. The uncertainty of antitrust law leads the private enforcement of antitrust has been used as a tactics action aimed at the other competitors, which will cause the loss of the whole social benefit. Meanwhile, the uncertainty of antitrust has conflict with the neutrality, passivity, and no-profession characteristics of the judicial judgment. The activity and profession of public enforcement is more suitable for the antitrust law, especially the non-adjudicative and non-punitive nature of soft enforcement mechanism will lead to the proper application of antitrust law.The most frequently raised doubt about the soft antitrust law enforcement mechanism is the worry about the damage to the interest of the involved parties and the lack of protection to the public interest, so we need set up a supervisory institution for it. There have been three kinds of supervisory methods for the administrative discretion:legislative control, procedural control and judicial review. Although in US the main supervision for the soft antitrust law enforcement is the judicial review, the court will not interfere too much into the consent decree made by the government because of the court’s own limitation. The "publicity-comment-instruction" process supplies a "forum" for expression and protest by the different involving interested parties, and the essence of this process is a return to the procedural control to administrative discretion. The difference between this kind of procedure control and the traditional formal administrative procedural control is that the former is an afterwards procedural control which can not only guaranty the informality of the consent decree, but also form the deterrent to the enforcement process for the realization of the public interests.In the past two years of the enforcement of Antimonopoly Law in China, the effectiveness of private enforcement is limited, while the public enforcement has got a certain achievement. The antitrust guidelines promulgated by the enforcement organs during the process of antitrust enforcement bear the function of interpretation of the Antimonopoly Law and directions of the markets conduct. complying with the trend of the soft enforcement in the early days of the enforcement of the Antimonopoly Lawt, The Commerce Department paid much attention to the negotiation ways, and has set up a fairly perfect system of negotiation of concentration of undertakings. Anyway, without the stronger support of judicial review, the system of publicity and hearing should have been build up to supervise the negotiations of concentration of undertakings. The system of promise of undertakings in the Antimonopoly Law does not reflect its nature of negotiation, participation and process as a soft enforcement. With respect to the leniency system of antitrust, the applicable object, the qualification conditions, and the standards of leniency all should be explicitly stipulated in the Antimonopoly Law..