A Study Of Leniency Program In Anti-monopoly Law

"Monopoly Agreement" is such a conduct used for more than two business operators (including trade associations) to eliminate or restrict competition by price fixing, market allocation, restrict output, subdue rival or other conducts. In these three monopolistic conducts (Monopoly Agreement, Abuse of Dominant Market Status, and Concentration of Business Operators), "Monopoly Agreement" has the largest threat to the market competition order and the highest difficulty to be investigated or punished by the Anti-monopoly Law Enforcement Agency. Therefore, many countries have started to establish "Leniency Program" in their Antimonopoly Law to enhance the effect of investigation, collapse monopoly agreement, and maintenance the freedom and equality of the trade order.According to the structure that "analyzing the concept, discussing theory's value, concluding other countries'experience, evaluating Anti-monopoly Law in our country, giving some suggestions for a complete Leniency Program", author separated the article into five parts. And the main content of each chapter is as follows:Chapter 1 is "the Overview of Leniency Program". After introducing the basic concept of Leniency Program, and the five foundations to classify it which are concluded from its development, the author pointed out that the fundamental purpose to establish this program is to collapse monopoly agreement and maintenance the market order according to analyze the program's object, content and effect. Under the guidance of the fundamental purpose, the concept of Leniency Program in our country should be described as an institution to remove or reduce the applicant's liability when the applicant has stopped the monopoly conduct before he applies, for the Administrative investigation. This institution also allows applicant to start his application when the investigation has begun, but no "Amnesty Plus". Leniency Program has three characteristics, a specific object, a limited Leniency and keeping secrets throughout the procedure. They can help us to study the institution's elements.Chapter 2 is "the Analysis of Leniency Program's Theoretical Support and Value". According to making "Prisoner's Dilemma" and "winner-take-all" as its economics support, Leniency Program can increased the probability that the business operators give up monopoly agreements and cooperate the investigate participating in forgiveness to active of with of law enforcement agencies to enforcement agency's investigation actively. And further more, this program has played a positive role in enhancing the effect of the investigation and prevention of monopoly agreements, recovering the trade order as soon as possible and helping victims to get civil compensation with the support from effective deterrence, reasonable rules and security measures. However, Leniency Program is always questioned about its legitimacy after production. Therefore, the author rejected the view by proving the match between Leniency Program and principle of law or moral requirements, the low probability to happen and the high probability to be amended that its negative effects have performed. Then based on this legitimacy, the author proposed that we should agree to establish Leniency Program in Anti-monopoly Law of our country.Chapter 3 is "Learning from International Legislation Experience of Leniency Program".The program was set up by American and innovated by EU and has been introduced into more than 20 countries in the world. Now it is constantly evolving its theory and showing its superexcellent avail. The author summarized three principles which we can learn from international legislation experience. These principles include:achieving a reasonable transplantation by making it to match related laws, amending it in practicing again and again, insisting the principle "equity comes first to balance efficiency" to design implementation rules, designing reasonable substantive and procedural rules.Chapter 4 is "The Evaluation to Leniency Program in China". In China, we also have Leniency Program in anti-monopoly law since 2008. Our people are familiar with voluntary surrender and meritorious performance, so it's not difficult to understand Leniency Program, in fact, the biggest obstacle to use Leniency Program is just the rules of itself. Generally speaking, it's hard for our legal environment to satisfy the requirements of operating a complete Leniency Program. Firstly, there are only two Articles have the direct relationship with Leniency Program, so it's still too early to form an individual system which is asked for Leniency Program. Secondly, the simple descriptions and the lack of support measures are also hard for applicants to predict the results of his behavior and make a right alternative. Finally, the lack of procedure rules also leads to a bad result that it is very difficult to practice Leniency Program. In a word, we have not established a complete and reasonable Leniency Program yet.Chapter 5 is "The Suggestions of Leniency Program in China". The author suggested to begin with there followings to establish and improve this program. Summarize the successful experiences of countries in the world and learn, find out the way to transplantation that appropriate legislation and practice. Choose the model of administrative law for legislation; make it match with other laws. Insist the principle "equity comes first to balance efficiency", make sure the reasonable and effective rules would not Indulgence offenders. Accumulate experience and test the rules in practice, and then amend them repeatly when we need. Achieve the localization of the rules like making the leniency be limited in administrative liability, establishing a relationship between Leniency Program and Voluntary Surrender, resolving the disputes on jurisdiction and etc.In a word, we should adhere to the interest of society to guide the establishment of Leniency Program in our country. Maintain the basic principle of monocracy, and coordination and interaction between Leniency Program and enforcement in our country. Thus, we can achieve the maximize the role of Leniency Program, and also achieve the fundamental purpose of Leniency Program that collapse monopoly agreement and maintenance the market order in our country.