Government Restriction Of Competition Law Regulation

The Anti-Trust Law of the P. R. C. will be issued this year, which will be helpful for regulating the operating mechanism of market in China and creating the fair and competitive environment. The Anti-Trust Law of the P. R. C. will focus on regulating administrative monopoly, which is primarily the obstacle of the development of market in China. However, the restrictive behaviors of the government not only include the illegal administrative monopoly, some government behaviors are even authorized by law and set very unfair competitive opportunities, which broking the fair competitive marketing relationship. Some government behaviors directly cause the unfair competitive opportunities and the problem of capital outflow, such as the unreasonable authority policy, the discrimination on the taxation policy of domestic and foreign enterprise, and the barrier of preventing private enterprises coming into some special industries, etc. The paper lists the main performances of the government restricts the competitive behavior, and analyze the causing reasons. We believe it is unrealistic to rely solely on the anti-trust law to resolve the administrative intervention from the government; we should build up a legal system which is lead by the constitution, centered on substantive law such as the Anti-Trust law, and supplied by procedural law. We should assimilate the characteristics of marketing economy evolved from state ownership; learn from the setting of institution for executing the competition law in other countries and the regulations of judicial review procedure and legal liabilities. The author has proposed the initial suggestions as follows on resolving the aforementioned conflicts by reasonable analysis:Based on the idea of Rule by Law, we should control the behavior of government administrative monopoly by building a completed legal system.Redefine the government function in the market-directed economy, separate government functions from enterprise management, withdraw the state-owned economy from the competitive industries, so as to realize the separation of government from enterprises, restore the"night-keeper"role of government in market-directed economy;Reduce and cancel the favorable policy on the taxation for foreign enterprises, which only directed by the industry, so as to lead the resources to the forerunning industries, such as infrastructure and high-tech industry and realize the fair competition between domestic enterprises and foreign ones at the same starting point;Develop the national economy as the economic foundation of the state, carry out in detail the supporting policy on private enterprises;Make sure the high-level integrity, authority and independence of institutions executing the anti-trust law; Build up and complete the legal system which is suitable for the anti-trust law, restrict the government power in the sides of the setting of the legislative power and the administrative procedures, etc;Increase severity of the penalty for the behavior of the administrative monopoly; especially increase the personal responsibility for monopoly behavior in criminal law, so as to increase the authority and deterrence of the anti-trust law;Enhance the building of legal organizations and ensure the legal independence, procedural fairness;Build up the policy of judicial review, actionable the administrative abstract behaviors, which can be restricted powerful.