THESIS:Study On Intensity Of Judicial Review On Administrative Enforcement Of Antitrust Law

With the normalization of antitrust law enforcement and the arising of law enforcement dispute,the intensity of judicial review on law enforcement decision requires urgent attention.During the judicial review on antitrust law administrative enforcement,to what extent the judicial power should interfere with administrative agency is closely related to the shaping of antitrust substantive rules and the effective implementation.While the current legislation,theory and law practice is not able to provide enough support for this issue.The current legislation only defines antitrust decision should be reviewed judicially but there is no clear definition on the standard of judicial review.In law practice,the so called first antitrust law case "Two Concrete Enterprises in Nanjing defy the administrative punishment of Jiangsu Price Bureau"comes to a hasty end due to procedural matter,while it does not reflect on the substantive judgments.While the theoretical study to this matter is not deep enough.From one hand,the related theory on judicial review intensity on administrative law enforcement can not reflect enough the specific feature of antitrust field;from the other hand,the current study on antitrust law in our country is still concentrating on the interpretation of substantive rules.Therefore,ambiguous legislation,inadequate practice and insufficient on the theoretical preparation makes the comparison method research the best choice.United States and European Union,as the most advanced antitrust judicial jurisdictions,their antitrust law and practice have always in depth influence to our country.Meanwhile,the mode of judicial review intensity in US and EU respectively represent,to a certain extent,common law system and civil law system.Therefore,the related experience can be a good reference to our country.Based on this,from the basis of analysis on general theory of judicial review intensity on administrative law enforcement and antitrust law enforcement features,the thesis intents to deeply study,compare and make related suggestion to judicial review intensity on administrative law enforcement in our country considering the practical conditions of China.The first chapter makes general theoretical analysis to antitrust law enforcement and judicial review intensity,gives definition on the related concepts studied in the thesis,surveys the two judicial review intensity mode globally,summarizes the general influence concepts and factors,and make analysis on the special influence of antitrust law enforcement to judicial review intensity.From the general mode of judicial review intensity,US takes the appellate review model based on facts-law dichotomy,which gives much deference to fact-finding by administrative agency while applies de novo review on legal questions.While the EU inherits the consistent practice of civil law,which does not distinguish fact issue and law issue on review intensity but implements the comprehensive review.The main factors leading to the difference include different idea of separation of powers,native resource of law systems,specific historical background and different procedural concept and administrative process.All the differences as a whole constitute the external constraint to judicial review intensity of antitrust administrative law enforcement of one country.Meanwhile,antitrust law enforcement has its own specific features:the wide discretion,the professionalism of law enforcement,severity of antitrust penalty and enforcement method's dependence on soft law instruments will all produce complex influence to judicial review intensity of antitrust law.The second chapter makes a thorough investigation into the scope of judicial review of administrative enforcement of the US antitrust law.Since the scope of review of the agency decision is reflected by specific judicial review standard,the chapter firstly makes investigation into general review standard of US law.Afterwards,through analyzing and summarizing of case law,the chapter analyzes the specific features of judicial review standard of federal antitrust law and judicial review intensity from static lateral comparisons and vertical historical investigation.The reason to these specific features is mainly because of the judicial-centered enforcement system of federal antitrust law and the institutional reputation of Federal Trade Commission.The third chapter makes in depth study on judicial review intensity of EU antitrust law enforcement.Firstly,it introduces and analyzes the content and type of judicial review of EU antitrust law enforcement.According to treaty law,the judicial review of antitrust law decision can be categorized into review on non-penalty decision and review on penalty decision.The former one is legality review,under which the court can set aside a decision but cannot substitute the judgement of agency;the latter one is unlimited review,under which the amount of fine can be cancelled,reduced or increased by court.Then,it makes investigation into the two types of judicial review intensity,summarizes the related theory and practice and analyzes the features and reasons of judicial review intensity.After investigation into US and EU experience,the fourth chapter makes comparison and rationality analysis on judicial review intensity of US and EU antitrust law enforcement.Firstly it extracts the influence factors of judicial review intensity of US and EU antitrust law enforcement,including comparative qualification,legislation authorization,necessity of right remedy,lawsuit quantity and judicial resources.Then it analyzes the rationality of the two types of judicial review intensity and points out the existing defects of facts-law dichotomy of US,pragmatism approach of the court and the influence of ease switch between fact and legal conclusion to this mode.While,although comprehensive review of EU cannot consider the expert experience and administrative efficiency,its flexibility during practical implementation makes the remedy.However,there is still defect on review of the administrative interpretation of antitrust law in EU.Finally,based on the comprehensive comparison investigation and considering specific situation of our country,the fifth chapter makes suggestions on the selection of judicial review intensity of Anti-monopoly law enforcement in our country.Since the administrative litigation legislation of our country is generally affected by the civil law,meanwhile there still existing defects of facts-law dichotomy of US and pragmatism processes of the court,therefore our country should insists on comprehensive judicial review with flexible control in the anti-monopoly field.Fully considering the US and EU experience and practical condition of our country,there should be a strict review on the fact-finding of administrative decision of Anti-monopoly law,a loose review on fact-law mixing issues,a prudent review on legal conclusion and a loose review on definition of legal responsibility.Amid of those,a prudent review on legal question means that the legislative ambiguous of antitrust law decides its administrative enforcement will rely on massive abstract administrative interpretation and therefore the judicial review to an individual case by the court should make comprehensive consideration of administrative interpretation.Since the Anti-monopoly law of our country makes an extensive authorization to administrative agency,generally the court should give respect to administrative interpretation,while the degree of respect should consider comprehensive factors of administrative interpretation like the authorization,the form,the subject,the object,the content,the procedure and the time.