Research On Business Operator Commitment In The View Of Interest Balance

The Business Operator Commitment(BOC) is a system between the anti-monopoly authority and the respondents(business operators), in which if the respondents make a commitment that they will take actions to remove the negative effects of their previous acts, the authority shall settle the case on the basis of the commitment which they deem to be effective to eliminate the bad influence on competition. The BOC is free from those complex investigation and analysis which is commonly the indispensable part of general law enforcement, and it is widely accepted to be the system for efficiency. The nature is existed since the system is born, perfectly fitting the anti-monopoly law whose legislative language is vague and abstract, and it is needed in China where the administrative sources are extremely deficient. The system’s nature is correspondent to the purpose of anti-monopoly law, which is to achieve economic efficiency. However, there is more than just “efficiency” in the purpose of anti-monopoly law, the economic efficiency also includes the concern of social benefits and economic justice. The lack of concern of justice in BOC makes interest conflicts in its application.The interest conflicts in application of BOC exist in China as well as other countries where the anti-trust law is developed. The interest conflicts refer to the conflicts exist between the BOC’s participants and other interest-related parties. Interest-related parties are forbidden to(i) participate the procedures of negotiation, decision and enforcement of operator’s commitment,(ii) modify, expand or restrict the content of operator’s commitment, and(iii) raise a litigation based on operator’s commitment. The legal interest of interest-related parties is affected by the BOC, however, the interest-related parties cannot join the procedures to express their demands but rather let their interest to be decided by the participants. The justice of BOC has been destroyed and the interest conflicts are raised herein.Firstly, we found that the direct cause of interest conflicts in BOC shall be the faultiness of the anti-monopoly law. Although there are quite a few clauses of BOC, some major cases are not involved. There are the scope of application, the disclosure of significant information, and the participation of interest-related parties. Secondly, we thought the immature utilization of contract theory in economic law is another reason for interest conflicts in BOC, for the BOC is the outcome of utilizing contract theory in public law. The utilization of contract theory shall be confined within certain area, otherwise it will invade into the reign of public law and cause the unbalance and conflict of interest.In order to solve the problem of interest conflicts in BOC, we shall pay attention to the improvement and development of BOC. There shall be three steps to achieve the goal. The first is to determine the scope of application of BOC. We think BOC can only be used in cases where the influence of business operator’s acts is not definite, and certainly cannot be used in cases of which the damage is critical or the objective facts are not definite. The second is to build the disclosure procedure of significant information. The law shall clarify the content of information to be disclosed and the actual time spot and time limit of disclosure. The last is to design the public participation procedure, including public engagement and interest-related parties’ participation, to provide a way for public to express their opinions and protect their legal interest during the BOC procedures.