Research On The Anti-monopoly Leniency Program

The leniency system is to use the "prisoner" psychology of the participants in the case to encourage them to become "whistleblowers" and report the situation to the antitrust law enforcement agency.If the legal conditions are met,they will be exempted from criminal punishment or economic punishment system.The system was created by Americans with a practical spirit and developed and innovated in the European Union.By 2017,there were more than 60 countries(regions)in the world,including all member countries of the Organization for Economic Cooperation and Development(OECD).Enacted laws and policies related to leniency.The anti-monopoly law implemented in China in 2008 also established a leniency system.In recent years,the leniency system has become the main tool for countries to discover and investigate and deal with cartel,and has played an extraordinary role in investigating,dismantling,and inhibiting the formation of monopoly organizations.An investigation report by the OECD Secretariat in 2017 showed that in Canada,Chile,Germany,South Korea and New Zealand,approximately 45-55% of cartel cases were investigated with the help of leniency applicants.This ratio reaches 80% in EU,and 90% of cartel cases punished by the US Department of Justice have been assisted by the investigation of leniency applicants.China has implemented anti-monopoly law for more than ten years,but the leniency system is still in its embryonic stage.Whether in theory or in practice,we need to study from the system as a whole to details.Conduct research and analysis of relevant literature at home and abroad,use practical research methods,and improve and implement the innovative research leniency system in China.From a rational point of view,the design inspiration for the leniency system is derived from theory rather than practice.Because there are game theory and prisoner's dilemma theory to provide solid support for it,it can be said that the two theories are enough to resonate in any situation,whether it is the system,social situation or daily life,but also has two major foundations of economics and jurisprudence.Its legitimacy.Theory and practice have prompted law enforcement agencies in various countries to adopt the leniency system,but the leniency system encourages leniency applicants to report to their peers through inducement and persecution,and moral and justice arguments have always existed.As far as antitrust is concerned,if there is no strict quantitative analysis or numerical description,the effect of antitrust law enforcement is often magnified unreasonably.The law enforcement agencies rely onthe mechanism formed by the antitrust law itself to implement antitrust activities such as cartels.The blow,this move,always has a certain number of companies "miskilled" or "missed",which will not only cause the substantive effect of the law is not obvious,but also weaken and narrow the value evaluation of antitrust law.The implementation of the leniency system can rectify the defects of other systems of the antitrust law to a certain extent.While conducting theoretical proof,it must involve the beginning of the system.With regard to the specific composition of the leniency system and its relationship with civil litigation and criminal punishment,it gives a detailed description and more comprehensive discussion on the due aspects of the substantive rules and procedural rules.It discussed the entity issues of the leniency system,such as the applicable subject,applicable standards,penalties,and punishment amount.It also examined the leniency upgrade and punishment escalation systems.After reviewing the reconciliation system,we conducted a discussion on the need.In addition to the constitution of the entity and the rules of procedure,the relationship between the leniency system and civil litigation and criminal punishment was further studied.The research on the constitutionality of the leniency system is expected to be helpful to the revision of the relevant supporting legislation in China,but the various arguments need to be adjusted in accordance with the traditional work methods of China's anti-monopoly law enforcement agencies to adapt to China's national conditions,As mentioned in the article,leniency upgrade and punishment upgrade system.The anti-monopoly field has been independently implemented by law enforcement agencies of a certain country to maintain the original market economic order.International cooperation in the anti-monopoly field is still in its infancy,especially in the implementation of the leniency system,there are many challenges.International cooperation in the field of antitrust has always been an important aspect of the implementation of antitrust laws.It not only involves the antitrust violations of multinational companies across various jurisdictions,but also requires theoretical research in the antitrust field.Joint cooperation of research institutions.This chapter begins with an explanation of the legal basis and practice of international cooperation,advocating that countries with close economic ties with China should establish a bilateral cooperation mechanism,focusing on strengthening the regulation of anti-competitive behavior of multinational companies,especially involving core cartel,merger review,International cooperation in civil and criminal proceedings.It isproposed that countries establish international cooperation on the principle of notification mechanism,information exchange and comity.At the same time,it evaluates the cooperation trend of the leniency system and its impact on my country,and recommends to actively participate in the negotiation of WTO multilateral competition rules and strive to promote the development of international competition rules in the direction of developing countries.At the same time,it is necessary to narrow the differences brought about by theories,ideas,laws,policies,etc.before it is possible to establish a domestic and international dual-track system.The implementation period of the leniency system in China is short,and the experience of law enforcement agencies is inadequate.The status quo and problems of the implementation of the leniency system in my country are sorted out to lay the foundation for the improvement of the leniency system in my country.To explore the problems in the implementation of the leniency system through specific cases,for example,through the perspective of the processing results of the milk powder case,find out whether the judicial attitude of the leniency system applies to the horizontal monopoly agreement and the vertical monopoly agreement.Critical research has also been conducted on many traditional viewpoints.For example,it criticized the "prohibition of application for leniency" and "doubling the amount of the punishment involved in the case again" in the foreign punishment system,and replaced it with the proposal to allow the application and make up the amount of the last reduction.Another example is the applicable subject of the leniency system.Although it is a problem to propose which subject to apply in the study,drawing on and referring to the details of the legislation of Germany and the European Union does not absolutely exclude the organizers and compulsors from leniency.It may be excluded from the exemption from punishment,and consideration may be given to reducing the punishment.In addition to substantive issues,it also sorted out procedural issues and accountability systems.On the basis of studying the experience and lessons of the implementation of the leniency system in Europe,America,Japan,South Korea and other countries,this paper analyzes and discusses the problems in the implementation of the leniency system in my country.The purpose is to provide reasonable suggestions for the improvement of the leniency system in my country.Whether it is the scope of responsibility of the leniency system,the applicable subject,the applicable standards,or the application of the leniency system in different legal responsibilities,all havebeen clarified.At the same time,it provides comprehensive suggestions for the punishment mechanism,reconciliation mechanism and specific implementation procedures of the leniency system.For some specific system design,it also provides innovative perspectives.Regarding the number and range of reductions and exemptions,it is proposed that only a clear value can be regarded as the certainty and transparency of the leniency system,and the minimum requirements and the size of the treatment are the most "glamourous" aspects of the system.In terms of magnitude,there are two sets of reference schemes designed,one is to refer to South Korea,which is different from before and after the investigation is initiated;the other is to refer to the United States,which requires differences in the evidence standards at different stages;and to refer to the European Union and the recently issued Regulations for monopolistic agreement behaviors(preliminary draft)Letter of Opinion.The inspiration for the penalty space is not an absolute value,but a space or range for mitigating the penalty.The design of the second set of plans is: sequence +evidence standard + cooperation and assistance.In this structure,the former is manifested as objectivity,and the latter not only requests the subjective attitude of the applicant for leniency,but also requires its objective performance,not only to examine its remorse attitude and enthusiasm for cooperation,but also to investigate its participation in the investigation in the process Workload and contribution.Therefore,focus on subjective attitudes and objective behavior.The primary purpose of the leniency system is not to pardon the enterprise,but the ultimate goal is to deter and prevent monopolistic behavior,maintain the competition mechanism and protect the public interest,and provide support for private relief.Therefore,when there is sufficient evidence to confirm the monopoly agreement,no leniency is required.In order to investigate and deal with cartels and other collusive behaviors more effectively,it is necessary for my country to establish a separate and perfect leniency system and systematically stipulate the punishment,leniency treatment,leniency conditions and leniency procedures of the leniency system.Drawing on the successful experience of the leniency system in the United States,Japan,Europe and other countries and regions,enhancing the certainty and transparency of the implementation of the leniency system,enhancing the predictability of leniency,improving the efficiency of law enforcement,and finally achieving the value goal of antitrust laws.