The Research On China’s Antitrust Law Enforcement Settlement System

China Telecom, China Unicom said the application of suspending the antitrustinvestigations has been submitted to the National Development and ReformCommission and a rectification commitment has been made as well.According to therelevant persons in charge of the National Development and Reform Commission, theNDRC has accepted China Telecom and China Unicom’s application of suspending theantitrust investigations and will supervise and urge the rectifications of the twocompanies. However, the public are still skeptical about the "settlement" between thetwo companies and the NDRC, which reflects from the side that problems exist in theeffectiveness and operability of China’s antitrust law enforcement settlement system.Many domestic famous scholars believe that China Telecom, China Unicom monopolycase should not apply to China’s antitrust law enforcement settlement system, whichindirectly reveals China’s current antitrust law enforcement settlement system defects inlegislation.The antitrust law enforcement settlement studied in this paper is the mode of lawenforcement that in the law enforcement procedures of being suspected of violatingcases, the antitrust law enforcement agency negotiates with the investigated parties, andif the investigated parties commit to eliminate the consequences of the allegedviolations, antitrust law enforcement agency can suspend or terminate furtherinvestigations or punishment to the investigated parties based on certain fact. Theantitrust law enforcement settlement is an administrative contract, and it effectivelybalances the efficiency value and fair value. The background of the establishment ofantitrust law enforcement settlement system in China are the attention paid to thenon-coercive antitrust enforcement system and the drive of economic globalization.Rising to be the law is the symbol of the establishment of this system and the specificperformances are the relevant provisions of the China’s "antitrust law "and itssupporting regulations. By learning useful experiences of the antitrust law enforcementsettlement systems from the United States, the European Union and Taiwan, we candraw the following revelations: we should be clear about the application scopes andconditions of the antitrust law enforcement settlement system; we should set uppublicity procedures; we should establish defaults punishment mechanisms as well asinterested parties rights and interests protection mechanisms. Through the analysis of the specific situation of China’s antitrust law enforcementsettlement system for China Telecom, Unicom monopoly case, we can see thedeficiencies of China’s antitrust law enforcement settlement system directly and clearly:the lack of provisions of application scopes and conditions; the supporting proceduresdesigns being not meticulous enough; the lack of protection mechanisms to the rightsand interests of the interested parties. In response to these deficiencies, the followingmeasures can be taken to improve China’s antitrust law enforcement settlement system:Clarifying the application scopes and conditions of China’s antitrust law enforcementsettlement system. Specifically, excluding the clearly illegal cases and seriouslaw-related cases, as well as those in which the interests of the interested parties and thepublic shall be undermined; Remodeling supporting procedures of the antitrust lawenforcement settlement system. Specifically, establishing reasonable review proceduresof "suspend the investigation application", improved law enforcement agenciesmonitoring procedures and penalty mechanisms aiming at the investigated partiesfailing to perform or fully perform the contract; Establishing the rights and interestsprotection mechanisms of the interested parties. That is to say, the reliance interestsprotection mechanisms of investigated parties should be clarified, and the rights toknow and participate in the procedures should be protected.