On The Executive System Of The Anti-monopoly Law

The executive system is an important part of the implementation system of the anti-monopoly law. So far, the countries which have relatively mature systems of the anti-monopoly law have established sound executive system of the anti-monopoly law .The system plays an important role in maintaining the order of an effective and competitive market competition. At present, China is working on the formulation of an anti-monopoly law. The construction of the anti-trust law executive system, whose essence is the anti-trust law executive organs, is one of the contents which attract much attention. Explorations of the executive systems of the anti-monopoly law have very important theoretical and practical values.In this paper, it first inspected the general situation of the anti-trust executive system, including the summary of the generalities that every country's anti-monopoly legislation and practice presented. Besides, it contains the instructions of major countries'anti-trust law executive system , too. Followed by an in-depth analysis of the superiority of the anti-monopoly law administrative systems, it reveals the reasons of why the anti-monopoly law executive system has been established widely and become the major system of the anti-monopoly law. At the same time it also reveals the necessary elements of the effective functioning of the anti-monopoly law, which are independent, authoritative and professional setups of the anti-trust executive organs, as well as reasonable procedure designs .Apart from revealing the superiority of the anti-monopoly law in administrative enforcement system, the paper also points out the limitations of its existence. Finally, on the basis of the superiorities and limitations of the anti-trust law executive enforcement system it gives some suggestions about the constructions of China's anti-monopoly law enforcement system ,referring to the draft of China's anti-monopoly law.The article includes the following three parts:The first part reviews the survey of the executive system of the anti-monopoly law .The survey contains investigations of the executive systems of anti-monopoly law, and instructions of some primary countries'anti-monopoly law and its administrative systems .Commonness exist between different States'administrative systems of anti-trust laws. In this part of the paper, it mostly research the generalities of the executive system of the anti-monopoly law, including the generalities of the setting of the executive organs and the powers of executive organs and procedures of using them. First, generalities exist in the setting of the anti-monopoly administrative organs, which reveal mainly on the following aspects: high-leveled setup of the administrative organs, power independence and specialization of the composed personnel. These characteristics of the anti-monopoly executive organs are determined by the nature of the anti-monopoly law. The anti-monopoly law is the basic law of the market economy, which related to the effect of a country's economic performance . Meanwhile the anti-monopoly law is a very professional law, whose substantial criterion has characteristics of high-leveled generalization and, to some degree, faintness. Therefore, professional and authoritative organs are required to carry the law into execution .Due to the differences of the political system, the legal traditions and the external environment, distinctions are unavoidable between the executive systems of the anti-trust law in different countries. The United States was the world's first country who established a mature executive system of anti-monopoly law .This system was a strong demonstrative model for other countries. In addition to the United States, Germany and Japan have each established, to some degree, a mature executive system of the anti-monopoly law. In this part the general situation of the anti-monopoly law executive system of the United States, Germany and Japan will be introduced briefly.The second part is an analysis of the advantages and limitations of the anti-trust law's executive systems. Unlike the execution of ordinary private laws, such as the civil law, whose execution is accomplished by the obedience of the personal main bodies.Only when disputes occur, and at the precondition of the litigants'claims, can the court intervene as a representative of public power actively. And the anti-monopoly law is a legal means for the country to intervene in the economy, therefore the intervention of the state is an active intervention. The establishment of the anti-monopoly law executive system, the kernel of which is the anti-trust law executive organs ,is the reflection of the execution of the anti-monopoly law .Compared to judicial enforcement systems ,the executive systems of anti-trust law have obvious superiorities , the tribute are as follows:First, the anti-trust executive system has the character of initiative. The initiative is achieved by exercising power of making rules and directing market and so on. Compared to the legislations of parliament, regulations and systems made by the executive body of anti-monopoly can fulfill the purpose of a flexible, active and professional administration to the market economy. Though market guidance of the anti-monopoly executive organs', the competitive principal part of the market can understand the current competitive policies of the states as well as the considerations of the law enforcement agency's about the economic situations or behaviors related to the anti-monopoly .They can also know more about the analytical system of illegal activities, the determination to punish certain monopolistic behaviors and so on . All these can prevent and reduce the occurrence of violations.Secondly, the implementation system of the anti-trust law has the quality of specialty .Since the criterions of the anti-monopoly law is broad and vague, a large number of economic terminologies have been used in the provisions of anti-monopoly law. Besides, the standards to recognize illegal monopolistic actions are indefinite and uncertain, therefore, it is very difficult to judge whether an economic behavior has violated the law for it has limited competitions in a specific case .It needs inspections from every aspects especially in-depth law and economic analysis. Therefore, the anti-monopoly law is not applicable to the general administrative staff without much competence .One of the original intention to establish the executive system of the anti-monopoly law in the first place is execution by experts. Specialization of executive officers of the anti-trust executive agencies is clearly defined by law, which will ensure the accurate use of the anti-monopoly law and to effectively maintain the order of competitions and legal rights of the economic subjects.Third, the anti-monopoly law is a quasi-judicial system .The anti-monopoly executive agencies are entitled to an independent judgments on the case. The procedures are similar to those of the court's trials .From the viewpoint of form, function and the settlements of disputes, the anti-monopoly executive system is, to some degree, quasi-judicial .According to the quasi-judicial procedures of the anti-monopoly executive agencies, different views can be heard directly. The reasons and evidence are considered carefully; conclusion warranted through the object process. In that case, the solutions will be easy to accepted by people. Meanwhile, the quasi-judicial procedures can also supervise the anti-monopoly executive agencies to performing their power and rights in the legal way. In addition to the judicial processes, a large number of informal procedures are adopted in the executive system of the anti-monopoly law. These procedures are consultation system which based on the respect for the meanings of the people related. On one hand, the procedures enhance the executive efficiency, on the other hand, it do no harm to the interests of the people related. In practice, the advantages of informal procedures incentive both sides sufficiently to choose the application of this system.Fourth, the anti-monopoly law executive system has the quality of public welfare, which means it is non-profit. Compared with the form of personal anti-monopoly accusations, the execution carried by the anti-monopoly executive system is much more public. The primary purpose of private anti-trust lawsuits is to get its loss compensated, while the purpose of the executive anti-monopoly system is to maintain the order of the market economy. Effective competitive order is a public interest .In some cases, private sector are not likely to have sufficient incentives and resources to bring legal proceedings ,while it is their statutory duty for the anti-monopoly executive agencies to apply the anti-trust law, Besides ,the law enforcement of the anti-monopoly executive agencies'can make use of the support of public resources. Therefore, it can effectively protect the public interest. After the analysis of the superiorities of the anti-trust executive system, a brief introduction of the limitations of this system ,with the purpose to explain that while the executive system of the anti-monopoly law should be highly thought of, other systems should also be drawled for help, for example, a private power, to make a balance between advantages and disadvantages and to make best use of the advantages and bypass the disadvantages .The third part is about several reflections on constructions of the anti-trust executive system in China .First it inspects the present situations of China's anti-monopoly legislation and enforcement and then estimate them briefly: China's current executive system of the anti-monopoly law is a decentralized system several organs enforce the dispersive criterions .this current situations are easy to cause overlapping executions or law execute blank. , This decentralized enforcement of the law enforcement power of the status quo easily intersect and overlap or gaps in the enforcement. What's more, the present executive agencies lack independence and professionalism. Then China's present executive system mode of the anti-monopoly law is summarized and estimated, pointing out the strengths and weaknesses respectively. Finally, several recommendations about the constructions of China's executive system of the anti-monopoly law are given according to the latest draft of the anti-monopoly law .