Study On Administrative Enforcement Procedures Of China’s Anti-monopoly Law

The main content and role of anti-monopoly law is to protect competition and toprotect the market mechanism and competition mechanism to play a basic role inallocating resources, and thus anti-monopoly law is a needful system in the marketeconomic system, and is considered to be the core of economic law. However, "thelife of the law is to implement”, or the law just stays in the paper, and lawenforcement must have a sound system of procedures as a framework. Althoughanti-monopoly law is generally considered to belong to the economic law department,but the behavior of law enforcement agencies’anti-monopoly investigation,examination is an administrative act, and needs to be regulated by administrativeprocedures. Fair and reasonable administrative enforcement procedures can not onlypromote the target of substantive part of anti-monopoly law to be realized, but alsohas its independent value in preventing administrative abuse of power, protection ofhuman rights. To a certain extent, it can also improve the efficiency of lawenforcement by improving the operating mechanism of the anti-monopoly lawenforcement agencies.Because of the traditional idea of“regard entity belittle procedure”and the lackof the relevant law enforcement experience, the procedure part of anti-monopoly lawof China, which is the world’s youngest anti-monopoly law, not only lack the guidingprinciples, but also have obvious problems and deficiencies in legislative bodies, thegeneral procedure like filing, investigation, trial, and the link to civil procedures.Under the present circumstances, to draw lessons from developed countries and areaswhich have extensive law enforcement experience, and to transplant their advancedsystem of legal procedure, are said to be a low-cost way to build and improve China’santi-monopoly enforcement procedure. Summarized the three countries’enforcementprocedures system in the United States, Japan ,European Union, I found that there aresome general rule, such as law enforcement agencies have extensive investigative powers; enforcement procedures are judicial guarantees, and subject to judicialscrutiny ; they all pay attention to the protection of procedural rights of the parties;the reconciliation procedure is widely applied. However, the introduction of thesystem of judicial review in anti-monopoly law enforcement, is not so practicable inChina.Studying on administrative procedure law, combining with the characteristics ofanti-monopoly substantive law, I believe that China’s anti-monopoly administrativeenforcement procedures should follow the principle of participation, the principle ofopenness, as well as the principle of distinction. Implement the principle ofparticipation is conducive to ascertaining the facts, and will make the administrativedecision more easily to accept, and will also realize the diverse value of supervisinglaw enforcement agencies, protecting the legitimate rights and interests of parties,improving administrative efficiency, and thus the principle of participation should bethe first principle of anti-monopoly administrative enforcement procedures. Theprinciple of openness is from citizen’s right to know, and right to know is not only anextremely important democratic right of citizen, but also the extension or the premiseof the right to participate of the parties. Principle of openness promotes the massesmonitoring the government behavior, and thus to avoid the abuse of executive powersto a certain extent. The principle of distinction carries the value of the administrativeprocedures pursuing efficiency. Reasonable distinction on procedures will reduce theexamination costs and the sanctions costs of anti-monopoly law enforcement agencies,shorten the handling process of cases, and reduce unnecessary administrative costs inessence, so it can essentially improve administrative efficiency.In addition, by studying some concrete systems of foreign anti-monopolyenforcement procedures, I need to introduce and improve a number of concretesystems, including hearings system for concentration, avoidance system,announcement system, and the voluntary reporting system for suspected monopolisticconduct for the problems of our legislation. The hearing system is the most importantand effective embodiment of the principle of participation，and is considered the coresystem of modern administrative procedure law. For the hearing in China’santi-monopoly law, the key issue is to make the scope and effect of hearing clear. Avoidance system ensures the impartiality of anti-monopoly law enforcementby compulsorily eliminating the bias and preconceptions of law enforcementpersonnel. Applied to China’s anti-monopoly law，it should be clear that the lawenforcement officers those who participated in the investigation procedures shouldnot serve as the decision-maker. The announcement system is a specificinstitutionalized manifestation of the principle of openness, and we should expand itsscope of application in China’s anti-monopoly law. The introduction of the voluntaryreporting system for suspected monopolistic conduct can reduce the burden ofoperators in self-assessment, reduce the illegal rate of the community, reduceadministrative costs. The contradiction between the system and the lack of lawenforcement resources can be effectively alleviated by reasonable set of system.