Reflection And Improvement On The Regulatory Paradigm Of Trade Associations' Restricting Competition Behavior In China

A trade association is a non-profit social organization that is composed of operators with horizontal competition and solves the problems of production,management,collaboration,and rights protection in the industry through voluntary,self-discipline,and autonomy.Trade associations have two sides to competition.On the one hand,as an autonomous platform for competitive inter-operators,their organization and operation process can effectively provide industry-appropriate public services,promote market competition and improve efficiency.On the other hand,industry associations facilitate the communication,communication and collusion between the operators of the same industry,providing a suitable hotbed for the operators to implement restrictions on competition.From the perspective of formal performance,the restriction of competition by trade associations may be reflected in the fact that inter-operators use industry associations to reach a restrictive competition agreement,and may also be reflected in the establishment of regulations or decisions by trade associations to restrict competition,and may also be reflected as inter-operators implemented to limit competition.In terms of specific types,common trade associations restricting competition behaviors include: information exchange,price cartel,standard certification,boycotts and axis-spoke agreement.In foreign countries,the regulation of trade associations restricting competition behavior mainly presents two types: the decentralized regulation model represented by the United States and the European Union,and the specialized regulation model represented by Japan and South Korea.The decentralized regulation model does not tend to separately stipulate the restrictive competition behavior of trade associations in the anti-monopoly legislation,but separates them into various specific monopoly agreements and other restrictive competitions for separate regulation;while the specialized regulation model tends to set up special chapters in anti-monopoly legislation to systematically stipulate the specific performance,regulation methods and legal responsibilities of trade associations to restrict competition.In China,the regulation mode consisting of the Anti-Monopoly Law and supporting judicial interpretations,departmental regulations,and the Development and Reform Commission's "Industry Association Price Behavior Guide" have been formed,which have achieved certain regulation achievement in law enforcement and judicial practice.After comprehensive analysis and common comparison of the regulatory status of the United States,the European Union,Japan,South Korea,and China,we can summarize the three common points of the industry association's regulatory paradigm for restricting competition behavior: First,follow the reasonable rules of the anti-monopoly law to effectively determine the regulatory boundaries of competitive behavior;secondly,it relies on the regulatory path based on monopoly agreements,with particular emphasis on investigating the horizontal price agreements of trade associations;and third,the double penalty system for the illegal use of industry associations and operators,but more focused on the latter.However,empirical research on the regulation of competition behavior by the Chinese Football Association and the Insurance Industry Association shows that the above-mentioned general regulatory paradigm that is popular at home and abroad has certain application dilemmas in China.The regulatory dilemma of the Chinese Football Association is mainly reflected in the difficulty of making proper definitions of restricting competition behaviors.The regulatory dilemma of China's insurance industry associations is mainly reflected in the difficulties in the prevention and punishment of illegal behaviors.However,from the perspective of the predicament,both are created by the characteristics of China's special industry associations,but their specific manifestations are different.Due to the economic transition period,there is a certain degree of functional overlap in China,that is,there is a certain role crossover and conflation between the state intervention subject and the market subject.In the hypothetical situation of the general regulatory paradigm,the trade association is an extension of pure market power.It does not have an independent main will,but is merely a manifestation of the will of the inter-operator;while the local trade associations in China may be market forces.As a result of the joint extension of government forces,a complex subjective will is projected behind it,making the general regulatory paradigm difficult to apply.Therefore,according to the local actual situation of the development of China's trade associations,a unique regulatory paradigm that meets the needs of China's realities should be constructed.The reconstruction of this regulatory paradigm mainly includes two aspects.The first one is the change of the trade association's restriction on the regulation of competition behavior.It is necessary to realize the transformation from the rationality evaluation to the analysis of the power attribute evaluation;to realize the qualitative change from monolithic monopoly agreement to diversified restrictive competition behavior;to realize the change from dependency legal liability to independent legal responsibility.The second one is the expansion of the trade association's regulatory path.Under the Chinese national conditions,there are some institutional problems caused by the economic transition period in the formation and development environment of trade associations.It is necessary to expand the regulatory path and mobilize various economic legal systems including the Anti-Monopoly Law and the revolution of social systems.Under the guidance of the above ideas,the specific schemes for the improvement of competition behaviors of trade associations mainly include the following three aspects: First,the improvement of the provisions of the Anti-Monopoly Law on the restrictions on competition by trade associations.Special rules should be set in the Anti-Monopoly Law to regulate the competition behavior of trade associations.The content involves the definition of the concept of trade associations,the principled provisions of trade associations participating in market competition,and the specific performance of trade associations restricting competition.On the other hand,it is necessary to expand and improve the provisions of the Anti-Monopoly Law on the legal liability of trade associations.It should be based on the different legal responsibilities of the trade associations' illegal behaviors,and on this basis,construct various types of administrative and civil liability.Second,the amendment to the “Regulations on the Registration of Social Organizations” is needed.It is necessary to reform the dual management system and regional monopoly of the industry association,which is an amendment to the systemic problem that leads to the overlapping of the functions of the trade association and the administrative organ.On the other hand,it is necessary to improve the corporate governance structure of the industry association,which helps to prevent the inadequate supervision and uncontrolled behavior.Third,the amendment to the "Trade Association Price Behavior Guide" is needed.A new “Trade Association Competition Guideline” should be developed with the State Administration of Markets as the main body.The content of this guide will absorb all the effective experience related to price-limiting competition behavior in the “Trade Association Price Behavior Guide” and expand on this basis,ensuring to enable it to effectively guide all actions of industry associations.