On The Definition And Regulation Of Administrative Guidance Monopoly

Since the Eighteenth National Congress of the CPC,The CPC Central Committee and State Council make more effort to develop the socialist market economy.The Third Plenary Session of the 18 th Central Committee of the CPC pointed out,“Economic system reform is the focus of deepening the reform comprehensively.The underlying issue is how to strike a balance between the role of the government and that of the market,and let the market play the decisive role in allocating resources and let the government play its functions better.” The Third Plenary Session of the 19 th Central Committee of the CPC pointed out,“……minimize the direct allocation of market resources by the government,minimize the direct intervention in market activities by the government.” The power behind the intervention in market activities by the government,as a matter of fact,is administrative power,and administrative power may intervene in market activities not only through traditional administrative actions such as administrative penalty,administrative licensing,administrative orders and administrative enforcement,but also through some flexible administrative actions such as administrative agreement,administrative rewards and administrative guidance.Among these administrative actions,administrative guidance which originates from Japan,is used by a lot of administrative organs in China in now days,and that some administrative organs improperly intervene in market competition through administrative guidance leads to a new kind of administrative monopoly.Considering less attention paid to administrative guidance,research on administrative monopoly caused by administrative guidance is not too much,too.This article begins with theoretical analysis of administrative guidance,presents the concept of administrative guidance monopoly based on figuring out how administrative guidance impacts on market competition,tries to analyse the concept in theory and its performance,especially the shortcomings in the aspect of regulation through the application of anti-monopoly law,which should have been the main method to regulate administrative guidance monopoly.Furthermore,giving consideration to both administrative law and anti-monopoly law,and using the method of combining theory and practice,this article makes effort to analyse the prevention of administrative guidance monopoly through fair competition review,and the regulation through administrative litigation.Such kind of prevention and regulation can be used to make up the above-mentioned gap in some degree.Introducing some basic issues of administrative guidance,such as the concept,the classifications,the advantages and disadvantages and so on,would offer a foundation for the theory research on administrative guidance monopoly.Administrative guidance can be used as a tool for promoting industrial policies,or a tool for promoting competition policies.The above using of administrative guidance may cause positive impact or negative impact on market competition.The basis theory research on administrative guidance monopoly would offer a foundation for discussing how to regulate it.On the base of analyzing how administrative guidance impacts on market competition,this article attempts to define the concept of administrative guidance monopoly,and illustrates how to recognize it in practice.Some factors cause the occurrence of administrative guidance monopoly,and administrative guidance monopoly has its own particularity.Usually,monopoly is divided into economic monopoly and administrative monopoly.It is necessary to clarify the similarities and differences among administrative guidance monopoly,economic monopoly and traditional administrative monopoly.The conclusion is that administrative guidance monopoly should be recognized as a kind of administrative monopoly.The presentation of the performance of administrative guidance monopoly in practice both at home and abroad is very helpful to get a better understanding and an better analysis of it.The harmfulness of administrative guidance monopoly is worthy of attention.The application of anti-monopoly law should have been the main method to regulate various administrative monopoly,including administrative guidance monopoly.But there are some shortcomings in the aspect of regulatory scope,the prevention regulation,and the afterwords regulation and such shortcomings can not be overcome through the amending of the Anti-monopoly Law,which will be done in the near future.So it is necessary to rethink how to regulate administrative guidance monopoly more effectively.Recently,the fair competition review system is established in our country.This article manages to demonstrate the feasibility and necessity of the application of fair competition review to anti-competitive administrative guidance,and discusses some problems which need to be paid attention during the application process.In the meantime,with consideration of the amending of the Anti-monopoly Law,this article suggests some modifications to the fair competition review system.For the afterwords regulation to administrative guidance monopoly,the application of administrative litigation to administrative guidance is an effective method.Considering that administrative guidance is non-actionable according to the Administrative Litigation Law of the People's Republic of China,it is needed to demonstrate the action-ability of administrative guidance first.The value of the application of administrative litigation to anti-competitive administrative guidance will be demonstrated,too.Furthermore,in accordance with relevant laws and regulations,this article continues to analyse those noteworthy issues which occur during the procedure of acceptance,trial and decision of an administrative case related to anti-competitive administrative guidance.This article maintains that those traditional administrative actions which are legally enforceable will face more and more supervision,and the effect scope of them will also shrink,accordingly,flexible administrative actions such as administrative guidance will be preferred by more administrative organs gradually.Administrative guidance may make contributions to the development of market competition,but it may also causing a disorder to market competition,which is named administrative guidance monopoly in this article.Considering that the application of anti-monopoly law has some shortcomings in the aspect of regulatory scope,the prevention regulation,and the afterwords regulation,which can not be overcome through the amending of the Anti-monopoly Law,the prevention of administrative guidance monopoly through fair competition review,and the afterwords regulation of administrative guidance monopoly through administrative litigation,are all reasonable and feasible.