Antitrust Enforcement Reconciliation System Of Protection Of The Rights And Interests Of The Interested Party

The anti-monopoly reconciliation means:it is the dispute resolution that in the investigation process, through equal consultation, the Anti-monopoly Law enforcement agency and the business operator, who is suspect of monopolistic conduct, reach a consensus and sign the reconciliation agreement which asks the operator to stop monopolizing and meanwhile, eliminate the negative influence of the monopoly behavior. And then, the Anti-monopoly Law enforcement agency stops the investigation according to this. On the precondition that ensure consumers’ welfare and public interests won’t be infringed, allowing Anti-monopoly Law enforcement agencies and monopoly operator to reach a reconciliation agreement is the developed trend of the anti-monopoly implementation. Meanwhile, most of the people support this resolution, as the investigation of the monopoly case needs execution cost, through the reconciliation, it can not only improve the handling efficiency,but also promote the realization of the essence of fairness and justice.China established the anti-monopoly reconciliation officially in " Anti-monopoly Law " article45, and make it more specific in " The administrative authorities for industry and commerce and the monopoly agreements abuse of dominant market position case program regulations ", which is enacted by the State Administration of Industry and Commerce establish of the industry and commerce administration (Procedures). But our anti-monopoly reconciliation only specifies law enforcers and monopoly operators’rights and obligations, as if the operator promises to stop monopolizing and eliminate the negative influence of his behavior, the anti-monopoly law enforcement agency can make the decision that stop the investigation then. During this course, it doesn’t take into account that the rights of the interested party may suffer from business operators’monopoly behavior and can’t be relieved anymore, leading to the damage to the their equity finally.Consequently, although the anti-monopoly reconciliation ruled in "Anti-monopoly Law" has provided a new way for the solution of the monopoly cases, it ignored the protection of the legitimate rights of the interested parties, leading to that it’s unable to preserve public interests and enhance consumers" welfare. All above violates the legislation goal of the anti-monopoly law, and therefore, it’s essential to do a research into the protection regime of the legitimate rights of the interested parties in the anti-monopoly reconciliation, promote the beneficial and abolish the harmful, in order to offer better service for China’s anti-monopoly action. This assay mainly divides into three part:First part, the necessity and the potential problems of the reconciliation system. This part will analyze the anti-monopoly reconciliation’s natural character and argues for its necessity of the design and development. Then through analyzing it from a legal perspective, we’ll talk of the potential impairment to the benefit of the interested parties which exists in the implementation of the reconciliation system, and make a further discussion about the concept and scope of the interests mentioned in this article.Second part, the construction basis for the protection of stakeholders in anti-monopoly reconciliation. In this part, we’ll make a intensive discussion about the theoretical basis of the protection of stakeholders in anti-monopoly reconciliation, by means of analyzing Three Element Theory and the theory of Enforcement for the People, clearly the position, responsibilities and obligations of government, interested parties and monopoly operators in the anti-monopoly reconciliation, making theoretical basis for the foundation of protection system of stakeholders in anti-monopoly reconciliation. Then through investigation research into the foreign anti-monopoly reconciliation, it will provide a valuable reference for the perfection of protection system of stakeholders in anti-monopoly reconciliation in our country.Third part, consummate the principle, content, and method of the protection system of stakeholders in anti-monopoly reconciliation. This part proceeds from two sides, The principles and policies of protection system of stakeholders, and clearly that to protect the interested parties" benefit, it requests to have three principles: procedure participation, benefit balance and effective relief. At the same time, we’ll discuss how to perfect the method from two aspects:interested parties substantive rights and rights protective procedures.