A Cultural Analysis Of The Dilemma Of China 's Anti - Monopoly Law

After five years implementation of antimonopoly law in China, the basic establishment ofcompetition law system in our country. But to make our country anti-monopoly law from a paperinto a living law, still have a long way to go. Influenced by traditional cultural inertia, the law as atypical legal system of socialist market economy with Chinese characteristics, is suffering a largestate-owned enterprises in the implementation of law applicable to the plight of the frequentfailure. The reason for difficulties in antitrust enforcement has a lot of, such as the anti-monopolylaw enforcement law enforcement ability lack, remains to be perfect substantive issues such aslegal system itself. In fact, the antitrust laws as exotic, not only its effective implementationdepends on the perfection of the law itself, rely more on legal concepts, legal consciousness andlegal cultural support. Only digging the cultural factors behind the anti-monopoly law, caneffectively make up for the defect of existing normative analysis, the real from the source analysisof antitrust rules, system, system and spirit between the deviation with the fact. Based on this, thisarticle from two aspects: competition rights and cultural analysis on the implementation ofanti-monopoly law, and combining with the target on the implementation of antitrust andimplementation mode, try solving measures are put forward, with a strong theoretical significanceand practical significance. This paper mainly divided into the following three parts.The first part through China Unicom and China Netcom merger, cacti letter case and Chinatelecom Internet line access cleaning case of the three typical cases to reveal the anti-monopolylaw enforcement dilemma: this is a free enterprise the magna carat of antitrust law in the face oflarge state-owned enterprises to pale.The second part and the third part USES the method of comparative analysis, respectivelyanalysis competitive culture and rights of our country and the United States culture. First, from theperspective of competition culture were analyzed. Competition in the American culture is thefreedom of belief, extreme individualism, together with the traditional religion and the culture.The antitrust laws have derived from the correction of the traditional classical theory of freecompetition. In order to keep competition can effectively cope with market failure, propermanagement and control of private economic activity is necessary. By the ancient Chinese feudalpolicy "scorn" suppression and Confucian ethics thought of "harmony" work together, the effectsof competition to soil culture in our country lack of prosperity, even in the era of planned economyis seen as a disaster. In today’s reform and opening up, the competition culture remains to befurther cultivation, its loss has negative influence on the antimonopoly law implementation. The author put forward the competition of cultural cultivation should be performed according todifferent main body multi-azimuth, its core is the goal of clear anti-monopoly law implementation:antitrust law protection is the competitive landscape, rather than competitors. Any specificeconomic individuals should be treated fairly, not particularly gracious enjoy method.The third part from the perspective of the right culture, the reason for difficulties in antitrustenforcement. American individualism right ideas sunk deep into the legal culture soil, andeventually promote the birth of the anti-monopoly law. The view of law in the country thestandard and social structure has been restricts the citizens right to cultural development. Thetraditional centralized implementation of effective control of the state of individual, to create akind of\"almighty government\" to administrative pattern. Congenital blood relationship with thegovernment of the large state-owned enterprises are more willing to through rent-seeking means tocapture regulators, in administrative way rather than seeking through free competition advantageof the market. Once the official background and usually has a high administrative level for thestate-owned enterprise faced with the advantaged position of antitrust enforcement. Establish apublic execution, and secondly the private implementation of the anti-monopoly law enforcementpattern is the effective measure to solve the dilemma. Private enforcement will not only to theanti-monopoly law enforcement authorities play the role of supervision, also because of itsindependence, can better protect the rights of economic individuals of free competition, moremonopolies have great deterrent effect, can be training rights personal standard.