Function Of Competition Law

As an important part of economic law,the competition law is referred to as "economic constitution" in Germany and other legal fields,and it is no doubt of great importance to the modern society of “rule of law” and the market economy.However,the uniqueness of the competition law does not seem to be paid enough attention in the view of the current researchers of the rule of law.The theory of the rule of law,which is mainly derived from jurisprudence,is mainly based on observation of laws of formal rationality,such as civil and commercial law.The formal rational method has its specific historical context: in the 19 th century,the political system,economic system and legal system of the society were divided.The independence of the legal system in the three systems guarantees the operation of a formal legal system.And the legal system's neutrality with regard to the economic system makes the formal rational law need not more intrusive economic operation,but a set of basic rules.But the change of political and economic landscape in the second half of the 19 th century makes the relationship among the three systems change to some extent,and then competition law appears with these changes in the political and economic fields: the democratized political system in the United States,based on the interests of small and medium-sized enterprises launched the Sherman act,trying to fight the big monopoly enterprises in the economic field;Europe's laissez-faire economic system has run into crisis,forcing the political system and legal system to intervene more.This unique way of the birth of competition law which is differt from the way of the birth of formal rational law has heralded that the function of the competition law is different from the formal rational law,and that the rule of law theory could not fully cover the phenomenon of competition law.This paper will empirically examine the practice of competition law and reveal its various functions that are different from formal rational law and its specific institutional mechanism.The main contents are divided into seven chapters:The first chapter is "competition law,legal function theory and the function of competition law".Firstly,the time,space and legal field of the practice of competition law in this paper will be determined.Secondly,based on the polysemy of the concept of "function",this paper will discuss the existing theory of two kinds of legal function: the theory of function raised by Raz in the perspective of laws,and luhmann's function theory in the sociological perspective.After comparing the explanatory power of the two theories to the legal practice of relevant laws and examining how the concept of "function" is used in the academic fields of economic law,this paper will choose luhmann's function theory of sociology of law as the starting point of analysis;However,since there is some difference between the perspective of luhrmann's theory and this paper,this paper is not confined to luhrmann's discourse about the unique function of laws;Thus,the basic theoretical premise of this paper will be determined.Finally,the development of economic system,political system and legal system in Europe and America during the period of birth of competition law will be explored,and the new function of competition law resulting from relationships among these systems will be discussed.The function of competition law is summarized into three functions:policy function,identification function and expectation function.The second chapter "policy function of competition law",from the perspective of the significance of political country in competition law,explores that the competition law has such a function: communication between political system and economic system and integration of economic system,legal system and political system,enabling national policies to function to the economic system through competition mechanism,and this kind of function can be summed up as "policy function" of competition law.Policy function is not only the output of a one-way national policy intention,but also important for the formation of policy.On this basis,this paper examines empirically the collection mechanism of information for policy making in the practice of competition law,including the special mechanism of information gathering and accompanied information gathering mechanism,policy decision-making mechanism related to competition law,and the incorporation of policy into competition law and the relevant implement mechanism.The third chapter,"the identification function of competition law",firstly points out the different meanings of legal uncertainty for formal rationality and competition law.In formal rational laws,the existence of "uncertainty" means that "loopholes" need to be filled;However,the legal uncertainty in the competition law is deliberately "blank" in some sense.Because the existing knowledge of the competition law is very uncertain now,and the competition law needs to leave enough space for the intervention of the policy itself,the rules of competition law cannot be more determined.In addition,what's more important is:"competition" means that the economy encourage all kinds of competition constantly,all kinds of new competition acts beyond the consideration will appear continuously.This fact means that competition law itself needs a mechanism: to recognize in the legal sense the acts related to uncertain knowledge,the acts following the policy changes and the new type of competition acts that are emerging.In fact,competition law already has this function,namely“identification function".On the one hand,the substantive rules of competition law are very contracted and generalized,and thus the necessary rule space is reserved for the recognition mechanism.On the other hand,the competition law constructs a set of recognition mechanism through the process construction,the expansion of the information source and the introduction of new methods.In the procedural aspect,the competition law developed the prior recognition procedure and relatively complete administrative procedure;In terms of the expansion of information sources,other professionals and even the general public are introduced into the recognition mechanism of the competition law in some cases.In the aspect of new method of knowledge,the law developed the per se illegal principle and the rational principle,and introduced the method of economic analysis into the law enforcement and the judicial practice,and some theorists suggest introducing the theory of legal negotiation.At the same time,by reducing the administrative intervention into controversial competition acts,agreed judgment,settlement mechanism such as commitment,the function of identification of the competition law has been shrunk,lightening the identification burden of the system.In short,in the field of practice,the competition law system has developed some mechanism for recognition.The fourth chapter "the function of stabilization of behavior expectation of the competition law " first discusses the significance of rule of rules and the development of the consensual cognition in the field of competition law,and then discusses the necessity and the possibility of this function in the competition law area.And then discusses competition law rules that are being formal rationalization in different jurisdictions,such as France,Germany,the United States,international laws and other jurisdictions to form rational rules,anti-unfair competition law and other relevant mechanisms of stabilization of behavior expectation in other jurisdictions.The basic trend in the field of anti-unfair competition law is: the field of relatively mature for cognition is becoming rational in the form of rules.The law retains a certain amount of discretionary space for areas with less mature for cognition and potential new behaviors in the future.As to antitrust law field,this paper discusses the efforts of strenthening the stabilization of behavior expectation,such as issuing guidelines,constructionof recognition mechanism,freiburg school's efforts of strenthening private enforcement of antitrust law,Chicago school's limiting the enforcement scope of antitrust law,introducing economic analysis method to safeguard security,operation of per se principle and simplification of the rational principle.Despite all the efforts,in the current antitrust field,the expected function of stabilization of behavior expectation that the rules can provide is still relatively weaker than the normal formal rational laws.Chapter 5,“coexistence and interconnection of the function of competition law” further discusses the relationships between the three functions,namely,policy,identification,and stabilization of behavior expectation,and political system,legal system and economic system.The significance of these functions is further explained from the perspective of inner system relations.The stabilization of behavior expectation is a basic function that all laws have,which is the necessary function of the legal system;Policy function,to some extent,shoulders communication function for the economic,legal,and political systems.This function is a two-way operation for information input and output,the essence of which is to make political system to "legally" get involved in regulating economic system;Identification function is to communicate between the legal system and the economic system,which is a one-way operation by legal system generating new rules to serve the economic system for the normal operation of the economic system in the conditions of competition.On this basis,this paper discusses the interrelation among the three functions.On the premise of confirming independence of the three functions,this paper emphasizes that the third function will subject the other two functions,and illustrates the three indispensable function to construct and maintain the market competition order.Chapter 6 "Review on PRC competition law and practice”,first of all,examines empirically the policy function,identification function,stabilization function embodied in our positive law,and then explores the value of the function theory to be used to clarify some controversial issues in law studies.Recognition of real function will help better theoretically puts forward suggestions on standardization.Finally,from the perspective of better function,discusses the improvement direction of the competition law,and regards that our country can draw lessons from euramerican relatively mature system practice better in the aspects of formation and implementation of policy decision,and procedural construction of identification and expansion of information source,etc.Chapter 7 “conclusion: the meaning of the theory of competition law function for other law and rule of law” "first probes into the meaning of implementation mechanism of functions of competition law with regard to other laws,such as sub-economic laws,copyright law,the infringement liability law.