Research Of Legal Mechanism For Checks And Balances In Anti-Monopoly Administrative Enforcement

Anti-monopoly enforcement significantly affects competition pattern of China and the world.The paper studies checks and balances in anti-monopoly law enforcement,analyses problems exist in current antitrust enforcement structure and consequences of the use of the balance of powers theory,competition policy theory,soft law and hard law theory in antitrust law.Furthermore,the paper tries to investigate the application of enforcement in antitrust law and policy,and do research about checks and balances in antitrust enforcement process and external judiciary agencies.The study of administrative punishment law enforcement and monitoring procedures,administrative penalties discretion leniency policy,administrative guidance and other issues,would lead to existing problems of antitrust enforcement system.Moreover,the paper takes the status quo of our administrative system reform into account,and brings proposal regarding establishment of the Competition Commission,the Administrative Committee on Penalty,the tribunal separation,the implementation of administrative judges,Competition Tribunal along with the necessity of the establishment and specific measures.This paper consists of the introduction,body and conclusion,in which the introduction describes the background and current situation,research purpose and content,research thories and methods,as well as innovation and shortcomings etc.The conclusion section summarizes the main conclusions of this paper.Body part contains five chapters.The first chapter describes the development of three major legal theories of checks and balances,explores the basic legal theory of checks and balances in the field of anti-monopoly law.Also,the paper discusses the impact of the three theories of antitrust law and enforcement.Firstly,the paper discusses the foundation and development of the theory of the balance of powers,summarizes Locke,Montesquieu,Hamilton's theory of separation of powers and checks and balances.Also,the paper studies free competition theory of the classical school,neoclassical perfect competition,and effective competition in the anti-monopoly law enforcement field and their development and application.Furthermore,the paper does research in the importance of soft law and hard law theory in the administrative enforcement.On the basis of above analysis,the paper reaches to the conclusion that the balance of powers,competition and the combination of hard and soft law theory is the legal basis for checks and balances of anti-monopoly law enforcement.The constitution,power settings,relief and supervision of anti-monopoly law enforcement reflects the balanceof powers.What's more,the paper holds the conclusion that the enforcement of competition policy,monopolistic behavior in the market,competition and economic consequences of the damage analysis reflects the important role of competition theory of antitrust enforcement.The paper explains the necessity of strengthen the practice of the three theories on the anti-monopoly enforcement process.Also,the paper analyse the impact of anti-monopoly law enforcement theory.The second chapter presents the administrative enforcement of antitrust issues.Due to the limit of authorization scope of anti-monopoly law enforcement agencies,the set of preliminary investigation right,the regulation on suspension of investigation and commitments,waiver policy,hearings and other provisions of law enforcement procedures,the consequences of enforcement are various.Considering the actual cases,the paper analyzes the consequences of different law enforcement agencies,which are the creation of the AML regulations divide the implementation and enforcement of compartmentalization and lack of authority.Moreover,the paper analyzes the competition and efficiency of law enforcement of SAIC Development and Reform Commission and the differences of the two law enforcement agencies in methods,style and transparency.Also,these issues have shown the imperfection of antitrust procedures,i.e.discretion is huge,which may lead to the problems of the interest of administrative counterpart can not be effectively safeguard.And in certain occasion,Judical review of the anti-monopoly law is also not enough.First,the balance of powers theory has been applied in antitrust enforcement.It has been set in current anti-monopoly law enforcement agencies.Also,the current law enforcement has also reflected the influence of balance of checks and balances theory.Second,competition theory plays an important role in antitrust enforcement.The United States and Europe's practice of competitive theory in antitrust enforcement enlightens China Antitrust Enforcement produce.Finally,the paper analyzes the hard and soft law theories,their application in antitrust enforcement and their social effect.The paper reaches the result that administrative penalty discretion and administrative guidance lays great importance in antitrust enforcement.Then the paper brings the issue of inefficiency in the law enforcement because of the internal checks and balances.The third chapter analyzes the AMEA balance and effect.First,the paper analyzes the status and relevant issues of the practice of checks and balances among the state anti-monopoly law enforcement agencies,holding the opinion that there are overlapping responsibilities,law enforcement effect and law enforcement measure,and the effect of different law enforcement and some other problems,which led to the formation of law enforcement fragmentation.Second,internal checks and balances of law enforcement agencies include law enforcement procedures,and law enforcement supervision.And ways to supervise law enforcement procedures,includes report,acceptance,site inspection,collect evidence,and the hearing,the administrative penalty served,administrative reconsideration and litigation.Also,the paper studies France,European Commission,Japan's anti-monopoly law enforcement procedures,which may lead us to find existing problems in Chinese anti-monopoly lawenforcement departments.Furthermore,the paper re-analyzed checks and balances in Chinese anti-monopoly law enforcement agencies,antitrust law enforcement agencies through administrative authorization,administrative appeals and litigation constrain relations,and the paper believes the new modification of Administrative Reconsideration and the Administrative Procedure Law would lay more influence on superior anti-monopoly law enforcement agencies and subordinate antitrust law enforcement agencies.The fourth chapter studies checks and balances in the judiciary antitrust enforcement process with the study of latest international and domestic antitrust practice.First,the paper analyzes the courts' opinions on anti-monopoly civil litigation and administrative law enforcement departments' decisions on antitrust enforcement and anti-monopoly law enforcement,which can show the conflicts and relevant measure of the two departments.Also,the paper analyzes the effect of the Courts' review of the decision of the administrative law enforcement,such as the impact of the newly established administrative procedural law on judicial review of antitrust enforcement,brings the view that China can establish the system which lead courts to respect the decision of law enforcement agencies of antitrust law.Also,the paper analyzes the focuses of judicial review on anti-monopoly law enforcement decision,which may lay some influence on China's testimony responsibility rule,the discretion of courts on administrative penalty.Overall,this chapter analyzes the practice of judicial review on antitrust enforcement,which further illustrates the existing problems on antitrust law judicial practice of checks and balances.The fifth chapter further applies balance of powers theory,competition theory,soft law and hard Combination theory which have already been studied in the first chapters.This chapter points out the problems and relevant methods to the problems in the field of institutional,structural and procedural antitrust law enforcement.The paper brings out the suggestion of establishment of Competition Commission,which would efficiently solve the scattered,inefficiency problems of the three law enforcement agencies.The Competition Commission would be a unified antitrust enforcement agencies,inside the Commission there may set up a Penalty Commission.In this way,can the Penalty Commission be independent of Competition Commission,and the Competition Commission can focus their work on investigation,and the Penalty Commission can focus on making decision of the nature and relevant penalty of certain behavior.This would increase the transparency and fairness of law enforcement and record the whole process of recording law enforcement.Also,the implementation of anti-monopoly administrative penalty system would prevent the abuse of discretion,and keep the administrative enforcement system neutral.In order to solve the problems of judicial review of antitrust enforcement decision,the paper suggests to establish Competition Tribunal to trial anti-monopoly cases unilaterally,which includes antitrust civil litigation and administrative proceedings.Furthermore,to stabilize judges on the tribunal is also important.The court should respect the decisions of administration.And in this way,can we realize the hope of establishment of a balanced judicial and law enforcement system to perform anti-monopoly law,the promotion of the basic position of competition policy,and finally establishes a unified and fair marketeconomic order.