| The recessive administrative monopoly act is the administrative act that the administrative body, the organizations authorized by laws and regulations which have the function of managing public affairs, and other administrative subjects favor, support or protect the specific market operation subjects through improper financial aid, administrative control or other administrative means to hamper, restrict or distort the market competition, or have the potential to hamper, restrict or distort the market competition, and which is not forbidden by the laws and regulations yet. This act is different from the administrative monopoly act regulated by the Antimonopoly Law in the expressive form, with recessive characteristic. The administrative subject favors, supports and protects the specific market operation subject wrongly through administrative power, therefore the market operation subjects which are favored, supported or protected can obtain more market dealing opportunities and market competitive advantages for the competitive conditions changing of competitor; the competition among competitors becomes the unfair competition; this kind of unfair market competition will make other market operation subjects be at a disadvantage, fail in the market competition and be forced out of market competition, however, the potential competitors will also give up entering into the market, therefore it causes the decrease of market competition in this field, at last it will restrict market competition. Therefore above acts are uniform with administrative monopoly acts regulated by the Antimonopoly Law in essence.At the current transition period of our country, recessive administrative monopoly has three common expressive types:The first is that the administrative subject provides an improper economic support act for the specific market operation act. Such as provide land, mineral, spectrum, routes and other scarce resources freely or at a low price, and they are entitled to have grants and other subsidies (allowance) and duty exemption or reduction, low interest rates financing loan losses, cancel after verification, and other economic incentives. These acts give the specific operator economic interest so as to enhance its market competitiveness and maintain its market competitive advantage.The second is administrative control protection provided by the administrative subject for the specific market operation subject, which gives the improper market access, price and quantity of product (service). The original intention for the administrative control on market access, price and quantity of the state to the natural monopoly industries and the market areas which is relevant to the national economy and national security is to protect the public interests of society; however, with the changes of times and institution and the improvement of the technology, the state is gradually changing its original intention on the administrative control of these fields, and comes into the tool of the controlled companies seeking market monopoly position and monopoly profits, thus gradually lost its legitimacy.The third is the improper administrative support act of administrative subject for the specific market operation subject, which provides the specific market operation subject with economic interest. The common expressive forms:the administrative subject provides the specific market operation subject with special treatment or privileges outside the law on the public administration; the administrative power directly takes part in the market operation, such as salt industry and tobacco monopoly system in the mixed functions of government and enterprises way, the administrative subjects do a business, the profit-making activities are operated through cooperation or joint venture of administrative subject and specific market operator; the specific market operation subjects are merged and reorganized by the enforcement of the administrative subject; the administrative subject coordinates the specific market operation subject to take the unified market act.The above recessive administrative monopoly acts have a wide social harms:(1)Lead to unfair competition of the market, hamper the free competition of the market, the market competition mechanism is difficult to operation, the state-owned enterprise is difficult to be independent market operation subject, the private economy is difficult to be developed, and so that the sound development of market economy is hampered.(2) The recessive administrative monopoly makes the production factors not be used effectively, the operation management level and economic benefit of the enterprises which are favored, supported and protected by the recessive administrative monopoly is generally low, and so that the economic benefit is lost.(3)The recessive administrative monopoly makes benefiting enterprises ignore the significance of reform and innovation, so that the motivation, enthusiasm and initiative of reform and innovation are lost and even the reform and innovation are hampered.(4) The recessive administrative monopoly can cause the power rent-seeking which can lead to the waste of social resources and increase of social general cost; the enterprises which are supported and protected by the recessive administrative monopoly provide high-price and low-quality products and services, which can increase the consumption cost of consumers unreasonably, so that the total social welfare and consumer benefit will be damaged.(5) Lead to the corruption and extravagance of government officials and enterprise managers, and cause the social inequality and damage the government image.(6) The recessive administrative monopoly supports and protects the specific market operation subject through subsidy and preferential policy violates the non-discrimination, fair competition and other policies of WTO, and anti-subsidy and other agreements, causes international trade friction and economic sanctions, and affects the market economy status of China in international trade.For above problems what recessive administrative monopoly has and our national conditions, this study put forwards comprehensive legal regulation way with multi-subjects and multi-approaches. Namely the legal regulation system of anti-administrative monopoly shall be established, which is based on the anti-administrative monopoly enforcement, combining with the interworking and interaction of local governments supervision and judicial supervision of people's court.(1)Enhance the function of all levels of government on regulating recessive administrative monopoly. The Antimonopoly Law stipulates that governments at all levels are responsible for the pre-supervision, on-going supervision and post-supervision about the recessive administrative monopoly with the methods of recording rank supervision systems such as censorship system, administrative review system through abstract administrative acts. Therefore, the responsibilities of governments at all levels involving in anti recessive administrative monopoly shall be strengthened and the inactions of local government shall be effectively avoided.(2) Enhance the function of the people's court on regulating recessive administrative monopoly. Extend the acceptance range and the examination jurisdictions of administrative litigation through the modification and improvement of Administrative Litigation Law. Bring the recessive administrative monopoly into the supervision range of administrative litigation so as to enable the people's court to fully exert its function on regulating recessive administrative monopoly through judicial supervision procedures.(3) Enhance the leading role and functions of anti-administrative monopoly enforcements on regulating recessive administrative monopoly. The supervisions implemented by administrative review system and administrative litigation system of people's court are passive. Moreover, the supervision range and the supervision methods suffer much limitation. Therefore, the regulating of recessive administrative monopoly shall focus on the anti-administrative monopoly enforcements. Build an anti administrative monopoly enforcement mechanism with independence, authority, profession and high-efficiency through the modification and improvement of the Antimonopoly Law, aiming at satisfying the needs of anti-administrative monopoly enforcements.Firstly, perfect the legislative purpose and the basic principle of anti-administrative monopoly which are regulated on the Antimonopoly Law. That is, regard the maintenance of social public interests, market equity and free competition order as legislative purposes;regard the restriction of market competition legitimacy and economic efficiency of market economy as the basic principle. Therefore, the legal evaluation criteria and standard used for distinguishing recessive administrative monopoly come into being.Secondly, extend the administrative monopoly range regulated by the Antimonopoly Law and admit the recessive administrative monopoly into legal regulation range; the listed provisions regulate the transparency provisions and grant the discretionary right to the relevant anti-administrative monopoly enforcement agencies, on the purpose of distinguishing and confirming that whether the indirect market competition restriction measures such as implementing complicated and various administrative rights which cause the unfair market competition constitute administrative monopoly.Thirdly, build an anti-administrative monopoly enforcement mechanism which characterized with independence, authority, high-efficiency and profession. That is, it is recommended for the Antimonopoly Law to set up a separate anti-administrative monopoly enforcement agency under the Antimonopoly Commission of the State Council, practicing vertical leadership system and undertaking the anti-administrative monopoly enforcement assignment; grant this enforcement agency with powerful law-enforcement rights such as investigative right, compulsory right, revocation right, free discretionary right and sanction right so as to reinforce the authority of anti administrative monopoly enforcements; the anti administrative monopoly procedures of case filing, case investigation, case handling and case enforcement shall be perfected which is intended to improve the accountability mechanism relating to the administrative responsibility, civil responsibility and legal responsibility undertaken by activity subject who breaks the provisions of administrative monopoly. This measure contributes to the effectiveness of anti-administrative monopoly.Fourthly, establish the legislation evaluation system pre-and-post legislation in which the anti-administrative monopoly enforcement agency evaluates the legitimacy of state administrative control system, conduct the legal regulation on the state administrative control measures which don't possess legitimacy from the perspective of anti-administrative monopoly enforcements; build the objection system in which the interested parties of state administrative control system raise objections to the state administrative control acts which loss legitimacy. Furthermore, the objection system provides legal relief approach for the parties to timely correct the state administrative control acts which loss legitimacy in accordance with legal procedures.(4) Through the improvement and modification of the relevant laws, make the relevant laws comply with the spirit of the Antimonopoly Law. Therefore, they fully cooperate on regulating the administrative monopoly and clear away obstacles for anti-administrative monopoly enforcements.Firstly, perfect the market economy laws such as the macro-control law, the price law, and the finance and tax law. Make the macro-control law and the boundary between the government and the market is delimited, on the purpose of reducing the improper intervention conducted by administrative subjects to the market and preventing the administrative subjects from practice the recessive administrative monopoly in the name of macro-control.Perfect the price law and strengthen the impartiality and the scientificity of the price control acts, aiming to prevent the interest groups from making advantages of price controls measures to seek excessive profits and entrap consumers. Modify the relevant law system of finance and tax so as to solve the grass-roots government financial difficulties and the profound mismatches between the fiscal power and administrative authority which are caused by the current unreasonable finance transfer payment system and the finance and tax system.Secondly, complete and modify the Administrative Organic Law, Administrative Procedural Law, Administrative License Law, and other administrative laws. Enact the organic laws of provinces, autonomous regions and direct-controlled municipalities, and the organic law of municipalities, counties and townships (towns) and organic laws of the various departments of the state council as soon as possible, to make it as clear as possible about the duty and authority of the administrative subject and without elastic zones left. Make the Administrative Procedural Law, to standard administrative enforcement of law and the decision-making process, and ensure the legitimate rights of the interested parties during the administrative enforcement of law and the administrative enforcement. Modify the Administrative License Law, to present the negative listing management content of The Third Plenary Session of the Eighteen during the regulations on administrative permission settings.In accordance with above legal regulation measures, to form a regulation recessive mechanism and system of administrative monopoly law finally with full cover, multi-level, multi-channel and the law enforcement subject having a clear division of responsibilities, cohesion and closely cooperate with each other, to realize the "not dare" under the strict supervision, and the "unable" under the complete legal system, thus to achieve the regulation goal of treating both symptoms and root causes. |
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