Sanction On Price Fixing Violation In The United States And Its Inspiration To China's Relative Legislation

Anti-trust is the core of Western Economic Law. As the most detrimental trust behavior, price fixing is usually the most regulated around the world. Naturally, its sanction provisions have been the core of anti-trust sanction provisions. Standards and theories of price fixing sanction provision have been well developed in the United States. In China's future legislation, enforcement and judicial application, price fixing sanction can not be avoided. Therefore it has great practical value to study and establish the price fixing sanction provisions of China. This article is part of the effort to establish China's own price fixing provisions based on the experiences accumulated in the United States. This article includes three chapters:Chapter one. Analysis of composition factors is the basis for recognition and sanction of price fixing and correct understanding of the harm of price fixing is also the starting point of correct understanding of legal sanction provisions, so composition factors and the severe harm of price fixing are analyzed in the beginning of this chapter. The third section analyzes the relevant sanction theories: optimal deterrence theory, classical deterrence theory and desert theory. All the abovementioned theories have its defect, so compromise theory has become the mainstream theory of sanction on price fixing. Chapter two. Chapter two is the main part of this article. It introduces and evaluate the sanction provisions on price fixing in the United States, which can be divided into three categories: criminal sanctions, corporate leniency policy and treble?damages remedy. The enactments of the 1991 Antitrust Sentencing Guideline of and 1991 Organizational Guidelines was the climax of sanctions on price fixing. Nevertheless, it lacks the interpretation of volume of commerce affected by the violation even although there is detailed calculation provision of monetary penalty and imprisonment. This problem hadn't resolved until the Judge Newman raised a method of "revertible proposition". Corporate Leniency Policy is one of the effective sanction policies of price fixing, which provides the amnesty of the employees or companies who are qualified by self-reporting to the authorities about the conspiracy and thus greatly raises the possibility of detecting and punishing price fixers. Treble?damages Provision is another sanction, around which the scholars still hold disputed opinions.Chapter three. The last part of this article introduces the present conditions and characteristics of price fixing in China and the existing legal regulations, points out the defects in legislation and enforcement and makes conclusion on the American experiences in theoretical foundation, sanction modes, sanction structure and specific practices, which can be learnt from by China. In the end, in consideration of China's specific circumstances, the author makes her suggestion on China's price-fixing legislation in the future, that is to follow compromise theory, stipulate bi-modal penalties on corporation and individual in the price fixing cases and apply a coordinated and mutually-supplementary sanctioning system consisted of criminal, administrative and civil sanctions. In elaborating the main thesis of this article, the author applies historical, comparative and case analysis together with economic analysis in hope of finding sound and reasonable theoretical justification to enhance the feasibility and persuasiveness.