The Study On Amnesty Program For Cartel Under PRC Anti-monopoly Law

Amnesty Program refers to such a system that if the companies involved in cartels or the related individuals take the initiative to the antitrust authorities with disclosure of related evidence or provide related information and cooperation during the period of investigation by the antitrust authority can reduce or exempt the penalty. In practice, in order to avoid severe legal sanctions, the company would take the form of covert acts of the cartel, which bring difficulties for the authority discovering and imposing sanctions against cartel. Great effort has been achieved by Amnesty Program in America from 1978 when the Corporate Leniency implemented to 1933 when the Corporate Leniency amended. Since then, countries around the world follow to implement the amnesty program. So far the United States, the European Union, Canada, France, Germany, Japan, South Korea, Australia, Britain, the Netherlands, Ireland and Taiwan etc. introduced the amnesty program against the cartel.Amnesty program create a "Prisoner's Dilemma": only the former ones who report for its anti-trust violations to antitrust authority, the company can immune from proceeding, if it is not the former ones, even a few hours later, the company should be punished and all members will be prosecuted. This way of " winner take-all" establishes a competing confessing mechanism, and resulted in the tension and distrust between the cartel members. However antitrust authority shall take the advantage. On one hand, this system has increased the vulnerability of the cartel. Each member of a cartel was afraid of exposing by partners and bear strict legal liabilities. However, each participant can be obtained lenient treatment through confessing and disclosure. On the other hand it also benefits for the antitrust authorities on the cartel investigation and saving investigation costs.Last year, China's newly released "anti-monopoly law" also study from the United States, the EU's legislative experience, and introduce the Amnesty program in Anti-monopoly Law. Article 46, term 2 states that "Operators will take the initiative to report to anti-monopoly law enforcement agencies with monopoly agreement and to provide important evidence, the anti-monopoly law enforcement agencies have the discretion to reduce or exempt the penalties to the operators. " It is a great progress compared with the draft. However this is also just the principle, in practice it shall face a lot of problems. There exists a big gap with the United States, the EU and other countries and regions. Firstly, the article only includes the immunity of executive liabilities and excludes the criminal and civil liabilities which are also important for inducing the companies to confess their illegal acts. The article does not give a definite and concrete content of this program, and does not state the concrete requirements of reducing and exempting penalties. On the one hand, it may result in that the implementation of amnesty program is more dependent on discretion of the anti-monopoly law enforcement agencies. On the other hand, the operators could not reasonable predict the results of confessing illegal conducts for lack of concrete regulations. Thirdly, the Anti-monopoly Law only provides for the companies' with the amnesty program, but it does not deal with whether the directors, managers and senior management staff of the companies shall receive amnesty through confession. Finally, the effectiveness of implementation of amnesty program will be seriously affected for lack of corresponding system. One is the lack of triple compensation for damages liability and the criminal liability, "Frankly for leniency always combined with severe penalties", the effectiveness of amnesty program implementation is always connected with the strict penalties. The other is the lack of individual litigation so that the civil liability could not be relief.Therefore this paper address the problem of amnesty program which introduced in PRC Anti-monopoly Law, combining the situations of other countries, together with an analysis and finally concludes that China should establish and improve the amnesty program against cartels, covering criminal, civil, administrative liabilities, and set up triple compensation for damages liability, the criminal liability and individual litigation to combine with transparent amnesty program for the purpose of preventing cartels and maintenance of fair market order.