On The Leniency Program In The Anti-monopoly Law

Cartel is between the same business operators limits the competition the union, because it destroyed the fair market competition order to receive various countries' antimonopoly law seriously strict prohibiting strictly. As the cartel's hidden, making anti-monopoly law enforcement agencies to detect and efficiently investigate cartels very difficult. Forgiveness is the system designed specifically for the secret cartel of an antitrust law enforcement system, This system through encourages Cartel the participant to report or to expose Cartel's illegal activity on own initiative to the counter-monopoly law enforcement agency, thus obtains reduces the punishment the system design, reduced the counter-monopoly law enforcement agency to discover that the Cartel illegal activity the information and the evidence aspect's burden, was advantageous to discovers and punishes Cartel promptly. The regulation originate in the united states, The United States Department of Justice in 1978 founded the forgiveness system is modern antitrust law to forgive the embryonic form of the system, Inception of the system of law enforcement in the fight against cartels, the practice is not obvious, because the system was forgiveness abstract, fuzzy, operability is not strong, the members of the cartel for the lack of sufficient incentives to induce its informants. Then, the United States in 1993 and 1994 was promulgated the judiciary antitrust Bureau on company policy of forgiveness and the Department of Justice Antitrust Bureau on personal forgiveness policy (hereinafter referred to as the company law and the system of forgiveness, and forgiveness system of personal) ,with countries for forgiveness system evolving and amended to enable the system to be recognized around the world in the fight against cartels most effective policy tools, at present, the system is the world most of forgiveness and widely introduced.China's anti-trust law, in conformity with the trend of anti-monopoly legislation introduced to forgive system, Pursuant to section 46, paragraph 2 stipulates that: the operator to the anti-monopoly law enforcement report to reach agreement on the situation of monopoly and provide important evidence, antitrust law enforcement discretion reduce or exempt the operator of a fine."Obviously, such stipulation in is extremely simple, is fuzzy, in reality lacks the feasibility, does not favor our country counter-monopoly law enforcement. Therefore, it is necessary to profit from other national related forgiveness system's advanced experience foundation, the consummation and the construction conform to our country actual, the effective antimonopoly law forgiveness system..The thesis for the purpose of constructed and perfected the leniency program of China, and systematically analyzed and studied the theoretical and practical problem of the leniency program. the thesis is divided into four parts:The first part, the summary of the leniency program. First of all, defines the concept of its clear meaning of forgiveness and institutional system of the appearance of the system, that system is through forgiveness "to the antitrust enforcement agencies take the initiative to informers offenders to reduce their liability in exchange for cooperation in cartel members," such system design, to achieve the purpose of effectively combating cartels. Second, the study of the history of development of forgiveness system, starting from its background of the times, from a vertical perspective of the history of the pardon system, from the horizontal angle of the development trend of leniency. Then, theoretical analysis forgiveness system's and so on utilization economic, jurisprudence, sociology action mechanism, to have based on this forgiven the system the value goal and the system superiority and the latent risk have conducted the research.The second part, the system component of the leniency program. This article from the forgiveness system's applicable scope, the suitable object and is suitable the condition three aspects, to forgave the system the compose largely part to carry on the inspection and the analysis. Looking from various countries' antimonopoly law about forgiveness system's stipulation, forgiveness system is only suitable for the union limit competition behavior; It is suitable the object mainly to include the enterprise and individual; Through to American, the European Economic Community and the Japanese forgiveness system is suitable the condition the research quite, obtains the application forgiveness the general condition.The third part, the guarantee of the leniency program's effective implementation. In this paper, the system of leniency rules and operation of two aspects of the external legal environment to ensure its effective implementation were studied. Arranges the reasonable forgiveness rule and the good system movement environment is forgives the system effective implementation the important safeguard, the reasonable forgiveness system rules and regulations request forgiveness system must have is clear about, the concrete suitable condition, the rational design forgiveness treatment, the transparent convenient forgiveness procedure. Ensure the effective operation of the system of forgiveness external environment include: severe legal penalties, efficiency, integrity of antitrust enforcement.The fourth part, The construction of our the leniency program. In this section, first on China's anti-monopoly law of forgiveness and the current situation and the system of legislative system disorder do analysis on China's anti-monopoly law of forgiveness and the improvement of the system of General thought and put forward specific proposals. Because our country forgives the system concrete rule the flaw and the guarantee system effective movement external environment is imperfect, causes our country to forgive the system to attack in Cartel's law enforcement practice to display its proper effect with difficulty. Therefore, in view of these two aspect's flaw, the author put forward the concrete legislative proposal.