Research On Operators’ Commitment System Of Anti-monopoly Law

Operators’ commitment system, which is also named as settlement system ofantitrust law enforcement, is in order to maintain the market competition order, the lawenforcement agencies and suspected monopoly operators conciliate under investigation,then the law enforcement authorities stop the investigation after operators commitmentto stop monopolistic behavior and eliminate the consequences of acts. This system hasdifferent names in different countries, such as called consent decree and consent ordersystem in the United States, commitment decision system in EU, advised verdict systemin Japan, administrative reconciliation system in Taiwan. The advantages ofcommitment reflected in the overcome of difficulties in anti-monopoly enforcement, bylower cost to get high efficiency of anti-monopoly enforcement. This system is alsoconsistent with economic logic of optimization in allocation of resources under thedevelopment of modern commodity economy, so it has been pursued and favored allover the world.In2007, anti-monopoly law of China has let us see the commitment system figure,the forty-fifth law establish the status of this system in our country, which istransplanted from the female parent of the EU commitment decision system, at the sametime, the Administration for Industry and Commerce and National Development andReform Commission detail the system by programming of the anti-monopoly lawenforcement. However, compared with the legislation and practice in developedcountries and regions, this system in China still has many deficiencies, such as contentis inflexible, enforcement and operation lack supporting measures; scope and conditionsof commitments are not clear; lack of transparent mechanism to protect the third parties’and public interest and effectual supervision of commitment. This paper under thebackground of Telecom, Unicom commitment in the monopoly case caused extensivepublic concern, attempts to analyze the theory of commitment system from two angles:law and economics, understand its connotation and essence, master economic logicunder the cost-benefit theory. on the basis of interpreting our operators commitment lawsystem，writer combine with China’s anti-monopoly enforcement practice，explore thereasons for China’s first case of central enterprises antitrust cannot promise the systemfrom four angles, like the demonstration effect, public confidence, the investigationprocess and the nature of the case, summarizes our country’s problems of operatorscommitment in substantive law and enforcement. The two final part of the article based on domestic and foreign aspects, introduce the legislation and practice of anti-monopolycommitment system in United States, European Union and Taiwan, analyze theMicrosoft case in these three areas， summarizes The mature experience ofannouncement system, appraisal system and protection system of public interests andthe third parties. Meanwhile, we also found suitable condition of commitment is notreasonable in some areas and enforcement agencies’ authority is too large.Therefore, on the basis of experience and lessons from other countries, combinedwith China’s specific national conditions, this paper put forward measures to improvethe system of China’s commitment in order to enhance the feasibility and affection inpractice: first, definite the scope and conditions of operator commitment system, Inthe first paragraph in article forty-fifth of anti-monopoly increased:” But except thehorizontal monopoly agreement, the law is difficultly applicable to technical anddamage the public interests”; Second, establish protection mechanism for publicinterests, require the anti-monopoly law enforcement agencies to make a competitiveimpact assessment, build public hearing system and announcement system; Third,introduce participation mechanism for third parties, give full guarantee for stakeholderin participation right; Four, improve the supervision, establish security mechanism forperforming commitment by punishment, remedy for breach of contract,and establishingsupervisory authority.