Research On Judicial Review Of Abstract Administrative Monopoly

The issue of abstract administrative monopoly has a long history in China,the current damage is very huge.Competition policy regulation abstract administrative monopoly is an inevitable requirement to deepen the socio-economic system reform and comprehensively promote the rule of law.The current "Antitrust Law","Opinions on Establishing a Fair Competition Review System in the Construction of the Market System" and "Detailed Rules for the Implementation of the Fair Competition Review System(Interim)" have initially established a legal regulatory system for abstract administrative monopoly,administrative judicial review is the only way to achieve the effectiveness of legal regulation and implement abstract administrative monopoly legal responsibility through litigation and judicial judgment.This article is guided by the fact that judicial review regulation cannot be practical,and the internal reasons for the disagreement and elimination of the inherent consistency of the antitrust law and administrative law's value objectives,the objective position of antitrust law enforcement and the subjective position of judicial review,positioning the abstract administrative monopoly of judicial review in the competition assessment advocacy-administrative enforcement-judicial review comprehensive and diversified legal regulatory system,on the basis of drawing on extraterritorial experience and sorting out the existing legal system,it proposes that administrative litigation should be based on antitrust entity laws,broaden private litigation relief channels,respect fair competition review and public enforcement of antitrust administrative law enforcement,and focus on legality and rationality review Implement the core idea of legal responsibility regulation of abstract administrative monopoly,and designed supporting mechanisms such as "pre-trial","disclosure of evidence" and "preliminary evidence",litigation "priority of public law" and compensation "priority of protection of rights","dual track responsibility",and professional trial organization.The first chapter defines the concept of abstract administrative monopoly in a broader sense.Based on the theoretical study of the legal attributes and types of abstract administrative monopoly,it reviews the evolution of the abstract administrative monopoly regulatory concept and proposes a comprehensive and diversified legal regulation mode.By analyzing the value orientation and philosophy of administrative justice,it is pointed out that it has inherent consistency with the antitrust economic law in balancing public and private rights,and judicial review should become an indispensable organic component in a comprehensive and diversified legal regulatory model.The second chapter introduces in detail the successful experience of abstract administrative monopoly in the legal regulation of civil law systems,common law systems and economic system transformation and policy transition countries,this chapter point out that competition policy is leading,and "competition center" is the standard and value target,and judicial review participation is the common experience of all countries.By combing the current legal texts in China,we can also draw a feasible path for judicial review to participate in the abstract administrative monopoly legal regulation.Analyzing the causes of the problems of judicial review regulation in reality,and pointing out that the differences and elimination of antitrust and administrative procedure standpoints are the basic issues that need to be resolved to achieve judicial review.The third chapter is based on the issues pointed out in the previous chapter,and takes the administrative judicial review as the starting point of protecting the legal interests of antitrust entities,using the basic theories of antitrust law and administrative law to conduct in-depth research on the essential elements of abstract administrative monopoly in judicial review.Judicial review should open the relief channels for private litigation,third-party participation in litigation,administrative law-enforcement organs' application for non-litigation enforcement,and public interest litigation.it also should effectively protect the legal interests of the objects pointed to by antitrust entity laws,and apply legality and reasonableness to antitrust laws Comprehensive review,and correctly apply antitrust legal systems such as undertaking commitments,waivers,application exclusions,and exemptions,so as to achieve the legal effectiveness of the abstract administrative monopoly of antitrust regulations.The fourth chapter focuses on the improvement of the litigation procedure system about judicial review abstract administrative monopoly,from the direct litigation mode stipulated by the current law to private litigation and the more refined operation of "pre-trial".rules applicable to the abstract administrative monopoly with censorship are made in each litigation link of jurisdiction,prosecution,trial,adjudication and judicial relief;We should respect and carefully review the results and opinions of public execution of fair competition review and anti-monopoly administrative law enforcement,and improve the rules of evidence supporting private parties to fully express their propositions and claims through litigation;we need to make full use of the temporary relief,concession,and reconciliation system of the antitrust law to promote dispute resolution,achieve internal supervision of administrative responsibility and administrative liability,civil liability and criminal liability fully implement.The fifth chapter gives due consideration to the institutional support of the comprehensive and diversified legal regulatory model about abstract administrative monopoly.In the legal system,the "Anti-Monopoly Law",as an "economic constitution",has achieved the codification of substantive law and has been approved in the judicial review by the "Administrative Procedural Law".The competition assessment,advocacy,law enforcement and judicial review are coherent,and specialized trial organizations of antitrust with reasonable jurisdiction,professionalism and precision are expected to establish through deepening the reform of the judicial system.Even if it only involves judicial review of abstract administrative monopoly,the subject is grand.The reason is that there is no theoretical support for the people's court to examine the involvement of public power in the field of market private rights.As a result,the people's court shall break the division of judicial and laws departments.The people's court shall apply economic law to all judicial departments.The people's court shall implement the rule of law in an all-round way and improving the level of modernization social governance.Based on this,the conclusion of promoting the research and application of this subject under the background of this era is drawn.