A Study On Leniency Program Of Anti-monopoly Law

Leniency program is an effective tool in anti-monopoly execution which can play an important role in cracking monopoly agreements and promoting the efficiency of anti-monopoly execution. However, as the result of broad-brush legislation, leniency program of Anti-monopoly Law of PRC is not concrete, clear and perfect, and the function of it can not be realized completely. So, it is necessary to learn from the experience of anti-monopoly execution in future and perfect the leniency program.The thesis conducts research and discussion with the logic structure of "basic theory interpretation-overseas system review-domestic system perfection", and the contents of the different parts in the paper are summarized as follows.Part one is to interpret the leniency program of the antimonopoly law on the theoretical level, mainly explaining the definition, features and important conditions of the leniency program of the antimonopoly law to offer the necessary background knowledge for the following analysis and discussion on problems. The leniency program is a system that the offender who is a part of monopoly agreements initiatively reports the relevant information of the reached monopoly agreements to the anti-monopoly law enforcement agency, offers corresponding evidence, and actively cooperates and assists in the law enforcement investigation, according to which the antimonopoly law enforcement agency correspondingly mitigates or exempts the legal liability that the offender shall undertake. The leniency program is a tool of antimonopoly law enforcement system established in consideration of monopoly agreements' secrecy and utilizing monopoly agreements'vulnerability, and it only applies to monopoly agreements. The leniency program takes the mitigation or exemption of the legal responsibilities that the offender shall undertake as the incentive, and urges the offender to cooperate with the antimonopoly law enforcement agency initiatively, so as to break the monopoly agreements'secrecy, to help the antimonopoly law enforcement agency solve the problem of law enforcement, and detect in time and effectively investigate and punish monopoly agreements. Essentially, the leniency program is a legal-responsibility mitigation or exemption system. The antimonopoly law's adoption of leniency program reflects antimonopoly law enforcement agency's pursuing of law-enforcement efficiency, however, it's noteworthy that the detail design of the leniency program shall attach importance to the balance between efficiency and fairness.Part two is to introduce the leniency program of the antimonopoly laws in force in US and EU, analyze and research them, induce and summarize their features in design, and find out the advantages and experiences of the leniency program of the antimonopoly law in US and EU, so as to offer experience and reference for the perfection of the leniency program of the antimonopoly law in China. Based on the individual responsibility determined with bipartite punishment system, American leniency policy applies to both companies and individuals. As the civil damages of antitrust law are punitive, US expand the scope of application of the leniency policy on legal-responsibility mitigation or exemption to civil sphere. Besides, with the experience and summarization in the antimonopoly law enforcement practice, US also launched Amnesty Plus and Penalty Plus measures. Different from American leniency policy, the leniency program of EU arranges leniency treatment in echelon and gives differentiated treatment to the applicants. Additionally, EU has explicitly stipulated on the evidence offered by the applicants that the evidence offered by the penalty-waiving applicant must be able to activate investigation procedures or make antimonopoly law enforcement agency affirm cartel, and the evidence offered by the penalty-reducing applicant must be of significant added-value. Besides, EU actively draws on the practical experience of US in the utility of leniency policy, takes the qualification maintenance system of American leniency policy as the model, and creates the marker system with distinctive local features. Based on the analysis and research on the leniency program of US and EU, the following experience can be enlightened:Firstly, when referring to overseas experiences and measures to perfect the leniency program of antimonopoly law in China, we shall consider the actualities of China, instead of copying blindly and inflexibly. Secondly, we shall introduce automatic application mechanism and reduce subjective expression to eliminate the uncertainty of the leniency program. Thirdly, we must strengthen the punitive efforts on monopoly agreements and truly put all severe legal sanctions into effect. When offering effective incentives, we shall also fully consider the substantial protection on the applicants in the detail design of leniency program.Part three is to introduce the leniency program of the antimonopoly law in China, indicate the defects and shortcomings of the leniency program of the antimonopoly law in China, analyze the causes, integrate the current situation and features of China antimonopoly law's development, research how to perfect the leniency program of the antimonopoly law in China, propose the general plan for China leniency program's perfection, and make detailed systematic design. Judging from the effecting legal stipulations, China leniency program has the problems of poor maneuverability, great uncertainty, insufficient incentives and incomplete system etc. The above-mentioned defects and shortcomings of the leniency program are inseparable from the broad-brush legislation methods. So the competent authorities shall promulgate corresponding supportive measures in due time, and elaborate the detailed applications rules of leniency program In the perfection of the detail design of the leniency program of the antimonopoly law in China, the author thinks, firstly, we shall build standard procedures to strengthen the maneuverability of the leniency program. Secondly, we shall elaborate the substantial conditions for the applicants to apply for leniency to strengthen the certainty of the leniency program. Thirdly, to give differentiated treatment according to the actualities of the offenders, namely, to differentiate the principal and accessory, the first defendant and others, and the first-time offender and recidivist. Fourthly, we shall specify the duty of confidentiality of the antimonopoly law enforcement agency, and ensure the leniency applicants won't face any risk due to the revelation of any information. Fifthly, we shall strengthen law enforcement efforts and conduct international cooperation, and the Antimonopoly Committee shall give a full play to its role to coordinate the enforcement of antimonopoly law enforcement agency, meanwhile, we shall actively conduct cooperation with other countries and areas to reduce the conflicts arising from law-enforcement jurisdiction.