Study On Judicial Review Of Public Enforcement Of Anti-Monopoly Law By Administrative Authorities

This dissertation is designed to make in-depth studies on the theoretical and practical questions related to judicial review over anti-monopoly administrative law enforcements.Starting from the anti-monopoly administrative litigation system provided for in Article 53 of China's Anti-Monopoly Law,this dissertation makes comparative researches on the legislations and judicial practices in OECD member countries and China's neighboring countries and regions.In addition to introduction at the beginning and Conclusion at the end,this dissertation has six chapters as the main body which has their respective contents and research tasks as follows:Chapter 1 is “an introduction to anti-monopoly administrative law enforcement and monitoring and supervision”,which serves as the ground for the discussion and researches of the dissertation.By introduction,it touches upon the main two models of public enforcement of anti-monopoly law,and the establishment of model for multiple anti-monopoly law enforcement.Based on the characteristics of high professionalism and huge discretion in anti-monopoly law enforcement,it makes an analysis of the roles which can be played by internal supervision from administrative organs and external supervision from social opinion,power organs and judicial organs.It argues that timely,professional and effective external supervision comes from noting but the development of judicial review in the field of anti-monopoly.In addition,there has been a trend to establish judicial review mechanism in line with anti-monopoly administrative law enforcement across the world against global economic integration,which has been conducive to the enhancement of such enforcement,implementation of transparency principle and protection of legal rights and interests of administrative counterpart.Chapter 2 focuses on the “procedures for judicial review over anti-monopoly administrative law enforcement” in order to discuss several procedural issues related to the operation of judicial review over anti-monopoly.First,this Chapter makes a clarification of the connection between judicial review over anti-monopoly,administrative litigation,anti-monopoly civil litigation and litigation against administrative monopoly.Second,it makes a discussion of the setup of judicial organs in charge of anti-monopoly and its jurisdiction,and the provisions for the administrative counterpart to launch judicial review procedure and other relevant issues such as period for prosecution,pre-post review and appeal.Finally,this Chapter makes an analysis of the rendering of decision by judicial review organ and its possible influence on the administrative law enforcement decision.Chapter 3 stresses on “the intensity of judicial review over anti-monopoly administrative law enforcement” in order to find the appropriate extent to which judicial organs can intervening in anti-monopoly administrative law enforcement and the extent to which it should show due respect to administrative organs.After a summarization of main aspects for the reasonable grasp of judicial review intensity,this Chapter puts forward methods for the differentiation of infringement cases and merger cases.In Section 2 and 3 uses of this Chapter,there is a discussion of general methods for judicial organs to control the intensity of facts and the legal issue review from the perspective of burden of proof,the ascertainment of proof standard,the analysis of complex economy and commitments made by undertakers,etc.,and of special methods for anti-monopoly organs to control the review.Based on the clue of comprehensive review principle,the Chapter points out that there should be improvement in the transparency in anti-monopoly law enforcement and reduction in the frequency and intensity of judicial intervention in order to achieve the ultimate target that judicial review is always at hand but may not be heard.Chapter 4 aims at “judicial review relating to law enforcement based on concerted conducts and other abuse acts” in order to have a concrete discussion of judicial review over law enforcement in illegal cases.After an analysis of experiences of judicial review conducted by European Court of Justice over European Commission in its law enforcement in the cases of cartels and abuse of market dominance,this Chapter,from perspective of procedural and substantial law,focuses on the summarization of key points for the review of key law enforcement procedure,factors for the consideration of exemption or alleviation of punishment,etc.and of special substantial legal standards for the review of abuse acts in the name of law enforcement.At the end of this Chapter,the author makes a comment on three typical cases involving judicial review over anti-monopoly outside China.Chapter 5 makes an analysis of “judicial review related to merger and acquisition”.It expounds the intensity and important procedures for such review based on a discussion of judicial review over law enforcement in merger and acquisition(concentration of undertakings)cases and a combination of experiences of judicial review conducted by European Court of Justice over European Commission in its implementation of merger and acquisition.This chapter also discusses some specific issues in the area of merger and acquisition,including the review of complex economic consideration,sanctions against illegal acts in merger and acquisition cases,the third part having the right to apply for judicial review,etc.Chapter 6 focuses on the “improvement in China's judicial review over anti-monopoly administrative law enforcement” in order to put forward practicable suggestions for the improvements based on China's legal practice and international experiences.Based on an analysis of the positive factors for the promotion of judicial review system development and a reference to the progresses in China's judicial review over securities law enforcement up to present,this Chapter makes a prediction of the future development of anti-monopoly administrative law enforcement in China.There are two summarizations in this Chapter.The first is the summarization of major questions in China's judicial review over anti-monopoly administrative law enforcement from the perspective of judicial review procedure initiation,procedure controlling,facts and legal bases for such review and other factors.The second is the summarization of key points for the reform of judicial review over anti-monopoly from the perspective of improvement in law enforcement transparency,reasonable grasp of judicial review intensity,and enhancement of review over concerted conducts and abuse of law enforcement,gradual system establishment for the review of concentration of undertakings,etc.At the end of this Chapter,the author puts forward suggestions for the guarantee of effective implementation of judicial review over anti-monopoly law enforcement from the following three aspects: optimization of top-down design,improvement in professionalism of judicial review and reasonable adoption of commitments in anti-monopoly law enforcement.This dissertation believes that there are many imbalances in judicial review over anti-monopoly administrative law enforcement in China,which can not meet the increasingly high needs of anti-monopoly administrative law enforcement in an overall way.Therefore,this dissertation suggests that it is the time to quicken the establishment and perfection of system for judicial review over anti-monopoly administrative law enforcement in China after is promulgation and implementation of new Administrative Procedure Law and the inanition of comprehensively promoting the rule of law according to the principle of being neither conservative nor radical:At the legislative level,efforts should be made to ensure that Anti-monopoly Law becomes the central basis for competitive law enforcement and relevant judicial review in order to solve the competition-cooperation question in adoption of Anti-monopoly Law and Anti-Unfair Competition Law by taking the opportunity of amendments to the two laws.Basic administrative organs should be empowered with power to enforce law against administrative monopoly.In addition,there should be a new consideration of the need of pre-positive reconsideration in the review of concentration of undertakings and clear stipulations conferring power to law enforcement upon administrative law enforcement organs in the cases of administrative monopoly in order to include omissions of administrative organs in the scope for judicial review,bind the use of commitments made by undertakings and prevent the supervision of judicial organs from being weakened in disguised way.At the judicial level,China's Supreme People's Court may release special judicial interpretation in order to have an appropriate concentration of the case in terms of jurisdiction and higher levels of courts for judicial review.It may also establish detailed standards and regulations for evidences with dynamic burden of proof and flexible standard of proof in corresponding to the classifications of cases after a consideration of the feature of administrative investigation in anti-monopoly cases.It may provides clear conditions for the decrease of threshold of judicial review initiation,the change of decision & judgment enforcement,the comprehensive judicial review over all regulative documents with enough flexibilities,the attention to legitimacy of law enforcement procedure,the rule for the use of expert witness,and for proper handling of the relation between judicial review and direct private litigation.