System Of Anti-monopoly Law To Forgive

Cartel is a conduct that restricts market economic competition seriously, and each national law generally gives a severe legal regulation to it. However, the secretiveness and diversified forms that cartel shows make it become a prominent problem how to detect and then sanction the participants of cartel before the anti-monopoly law enforcement agencies. Practice has proved that the leniency program which was established by U.S. department of justice in 1978 is an effective tools well designed to deal with cartel. Afterward, it was introduced by Canada, EU, Germany, UK, France, Japan, South Korea, Brazil, Australia, New Zealand and so on. But at the beginning of its establishment or introduction, the effect is not so obvious, and the reason is that it is too abstract, not specific and definite, so it makes less incentive to cartel participants' application. Then, U.S. in 1993 and EU in 2002, 2006 amended the original leniency program respectively, and added the predictability and automatic applicability of the leniency program. Just these amendments made the effectiveness of the program increased, and it plays an important role in the fight against cartel.Anti-monopoly law conforms to the trend of anti-monopoly legislation, and provides the leniency program in provision 2, article 46. However, this provision is too simple and abstract; its effectiveness is worth considering. Does it just repeat the mistakes that it is too simple, abstract and discretional U.S. took in 1978, and leads to ineffectiveness? Based on the consideration of international background and the specific circumstances of our country mentioned above, author chooses the leniency program as the dissertation topic, and thinks it is necessary to review the leniency program of China's anti-monopoly law. How to guarantee the effectiveness of implementing the leniency program will be a topic that is concerned by legal theoretical and practical members. So this research has important theoretical and practical significance.The thesis takes the effectiveness of implementing the leniency program as the main line throughout the full paper, and expands in accordance with the logical structure and path of "Idea→System→Environment→Rules→Conclusion". The thesis bases on the theories of philosophy, law, economics, sociology, the traditional Confucianism and other related theories, and general uses the research methods of theory and empirical research, interdisciplinary research, comparative studies, literature studies, qualitative and quantitative methods and others, to broaden the current research range about the leniency program, deepen the study longitudinal degrees and conduct a systematic, comprehensive and deep research.The thesis is divided into five parts, and expounds the operation ideas of the leniency program of anti-monopoly law systematically. Firstly, the thesis brings forward the connotation, liability exemption modes, function and mechanism of the leniency program. Secondly, the thesis sets up an environment for the effective operation of the leniency program from three aspects, such as sanctions measures, anti-monopoly enforcement and the predictability. Thirdly, the thesis analyses the operating rules of the leniency program, the protection for the applicant and leniency procedure, and builds a set of applicable rules to ensure the leniency program operate effectively. At last, the thesis reviews the leniency program of China's anti-monopoly law and proposes the environmental elements and specific applicable rules for China's leniency program construction.Based on the existing researches, the thesis will break through from three main aspects as follows:Firstly, dealing with a variety of theories about the leniency program cautiously。From the legal theory of Legitimacy and rationality and under the guidance of the principle of weighing in the legal interests, choosing among procedure justice, protection of human rights, the real benefits of sanctioning main offenders and the real benefits of sanctioning minor offenders, and tracing the legal theory basis of the leniency program. Under the guidance of game theory in economics, the thesis analyzes the interests of all parties within the cartel game comprehensively, points out the root causes of cartel instability, and establishes the economics basis of the leniency program. Basing on the traditional ideas of mercifulness, punishment and forgiveness, the thesis points out the traditional ideas basis of the leniency program and the confliction between them. All of these above are the considering aspects when we design the leniency program.Secondly, from three aspects, such as severe sanction measures, strong law enforcement and the predictable leniency program, the thesis points out the environment that the leniency program operates efficiently at, proposes introducing cartel criminal responsibility in China's anti-monopoly law, perfects cartel civil responsibility system, sets up cartel personal qualification criminal responsibility. At the same time, strengthening the accumulation of anti-monopoly law enforcement agencies experience continuously and dividing the responsibilities of law enforcement agencies in accordance with industry sectors. At last, enhancing the predictability of the leniency program, expanding the scope of the operator and incorporating individuals and trade associations into the application objectives of the leniency program.Thirdly, from three aspects, like leniency rules, the protection for the applicant and leniency procedure, the thesis brings forward the specific rules that the leniency program is applicable to, and suggests establishing our leniency program from six aspects, such as reduction or immunity rules, evidence requirements, applicant cooperation, the stopping of offense, the leniency for the prime culprit and compensation for the loss of the victims. And in the thesis, it brings forward setting up "the exemption of evidence use" and "the protection of evidence", establishes the identity security system for applicants. At last, the thesis suggests setting up an independent office that accepts applications, implementing the mode of "leniency administration decided", and giving administrative and judicial relief for the leniency decision. All of these are aiming at making the leniency procedure fair, open and transparent.