On The Constructing Judicial Relief System Of The Anti-administrative Monopoly In China

The Third Plenary Session pointed out that we should focus on the reform of the economicsystem and further balance the relation between the government and the market, which canhelp to strengthen the decisive role of the market in resource allocation and to give full playto government functions. And this is the core of our economic system reform, as well as anobject requirement of the free and fair competitive market economy. While as a hereditaryobstacle to the market economy’s free, fair, and equal and order development, theadministrative monopoly has long been a chronic disease the market regulations need to dealwith. To regulate the administrative monopoly effectively has long been a study priority forthe scholars, as well as an intractable problem for the Competition Law. Due to its innatecomplex, professional, political and legislative characteristics, administrative monopoly isgetting more difficult to be controlled. Scholars has come up with variety of regulationtheories since the administrative monopoly’s emergence, from the political system reformtheory, the comprehensive treatment theory to legal theory, all striving to bring it into aneffective control, while practice has proved that the administrative monopoly has not beenregulated but intensified, which makes it more significant to pose a new regulative methodand a new break through for system, that is, the legislative control that brings an effectivecontrol to the administrative monopoly by the judicial remedy system.From a theoretical research and comparative point of view, with concentration on theregulation of judicial power towards the administration monopoly, the author analyzes theadministrative monopoly and the construction of judicial remedy system for anti-monopolyin four chapters in this full text.The first chapter analyzes the be-all and end-all of the administrative monopoly and thejudicial remedy system for anti-monopoly. By sketching scholars’ different views in definingthe administration, the author points out that administrative monopoly is all illegal state oract that the administrative subjects(excluding the State Council，central government)abuse ofadministrative power and the implementation of the exclusion，restriction of marketcompetition, the fact of which is an economical act and monophobic state supported by theadministrative power. Two points shall be highlighted when interpret the core of theadministrative monopoly: the first is that the subject that practice administration monopoly isthe administrative subjects excluding the State Council and is inherently connected withadministrative power; the second is that the illegal act and state of implementation of the exclusion，restriction of market competition of the administrative subject is mainly shown asan abstract administrative behavior, that is the abstract administrative monopoly, which is theregulation emphasis of the judicial remedy system. Furthermore, by analyzing the concept ofthe judicial remedy system toward anti-administrative monopoly, dissecting its legal footing,reviewing and analyzing the shortfalls of the theories and regulation systems of scholars andthe present legal system for regulating administrative monopoly, the author puts forward tobreakthrough for regulating the administrative monopoly by the judicial remedy systemrestrictions.The second chapter introduces and analyzes the practice of construction ofanti-administrative monopoly of foreign countries and its inspirations. By expounding theexperiences of building the anti-administrative monopoly judicial remedy systems of foreigncountries from aspects of the developed market economic countries and the transition ones,the author put forward to a view that the referential theory and results of practices shall beconcerned in China’s building of anti-monopoly judicial remedy system.The third chapter mainly discusses the actuality of the construction of anti-administrativemonopoly judicial remedy systems. Based on national conditions and theory, this partpresents the practical need and realization of the possibility of the anti-administrativemonopoly by expounding the challenges, the construction necessity, and feasibility of theconstruction so as to solve main problems and constructing condition foundation.The fourth chapter focused on how to construct anti-administrative monopoly judicialremedy systems. The general logic process of proceeding issue, trial, execution andsupervision, which the design of the system must follow, too. Therefore, in this part, firstly,there is a need to clarify the plaintiff’s and defendant’s scope in lawsuit about theanti-administrative monopoly and their direct justice rights because it is the cornerstone ofthe relief system. Secondly, as the premise of the court and the trial, the litigation mode andthe standard review of the anti-administrative monopoly case should be determined. Thenthe court jurisdiction and enforcement supervision need to be established, which is theultimate security to the realization of right. Finally, the supporting viable economic publicinterest litigation mechanism and the corresponding national compensation system should beestablished.There is no best but better system. The effective regulation of the administrative monopoly isnot a static stick in the mind, but a changeable keeping with times. Therefore, to constructthe anti-administrative monopoly judicial remedy systems is not to put things right once andfor all or accomplish at one stroke. It is also a dynamic theory system that needs all kinds of wise men in the academy to develop and perfect constantly.