Talk About The Our Country System Of Anti-monopoly Law Of Forgiveness

The thesis is mainly written by the traditional methods.First of all, demonstrating the rationality of the system, from the perspectives of jurisprudence, economics, legal sociology.From the aspect of jurisprudence, forgiveness system can be demonstrated by taking common rules to sanction the cartel participants and also can give the defection of cartel participants forgiveness treatment, different situationa are treated by the different ways, which not only realizes the fairness and justice in form, but also achieves fairness and justice from a real sense. At the same time, the implementation of the forgiveness system saves judicial resources, improve the operational efficiency of the market economy, and maintain the interests of consumers. Analysis from the economic perspective, the application of the rules for forgiveness system is derived from the system of plea bargaining in the United States, which bases on the characteristic of the rational economic man who pursues the maximum economic benefit at the minimum cost and minimum risk, assuming that to every member of participating in the cartel having the deceptive motivations, law enforcement agencies seek the cooperation with cartel participants through the sacrifice of legal fairness and justice value, to reduce the cost and pursuing the maximum benefits; Analysis from the aspect of sociology, this forgiveness system disuss the morality that based on whole society, should establish on the basis of common rationality of human nature, while implementation of the system might be immoral to some individuals in a certain way, but it is moral from the pursuit of the well-being of mankind. That is to say, the forgiveness system gives up the part of the interests of the illegal behavior, to achieve the maximum interests of the whole society, is in the interests of the modern economic law, emboding the requirement of fairness and justice.Secondly, putting forward the current problems of the forgiveness system in China, mainly including the problem of main body, time of application conditions, suitable number of items, and the range of deductions, legal responsibility and the liability and the right of law enforcement agencies. From the point of the current legislation, the main body in forgiveness system applicable range is relatively narrow, mainly is suitable for the operators, including natural persons, legal persons and other organizations, no individual(mainly executives) into the antitrust responsibility system, according to the "anti-monopoly law" in paragraph 3 of article 46, the operator does not include industry association, at the same time, the administrative department for industry and commerce "prohibit the regulation of monopoly agreements act" stipulated in article 20, ruled out the cartel organizers to apply for the qualification of forgiveness; The applicable conditions of forgiveness system in China is not clear, such as how to initiate a application effectively at a appropriate time for the cartel participants, what materials need to be ready to apply and the conditions of evidence, what kind of evidence is the "important evidence", how to define "significant added value" of evidence, etc., whether the number of the applicants and deductions should be limited, when to stop the illegal behavior most appropriately for the cartel participants after the application is put forward, and the law should make it clear, otherwise, there will be great uncertainties for applicants, as to affect applications of the applicants; Legal liability, criminal liability of forgiveness system in our country has not been stipulated, the scope of administrative fines is not clear, and fines an penalties is too small, the legislation principle for civil liability is too strong, not only did not distinguish with general civil liability, also are not ruled out sabotage, civil compensation standards, which department to accept the matter, and supporting procedures; The anti-monopoly law enforcement agency in liability and right problem, cartel includes price cartel and the non-price cartel, shall be the responsibility of the different law enforcement agencies, if the same case occur two kinds of cartel, there is no unified standard between law enforcement agencies, there will be scrambling to law enforcement or mutual buck-passing between departments. In addition, the law enforcement agencies handling cartel case have great discretion, the applicants think that the results under too much discretion have great subjectivity and uncertainty, and it provides law enforcement agencies possibilities to do omission and abuse rights, not benefits the forgiveness system’s implementation.Finally, in view of the problems, and puts forward specific solutions. The first is the choice of legislative mode, according to current situation of the legislation law and the current antitrust legislation, proposing that our country should adopt the administrative legislation mode to regulate the forgiveness system, specifically, the "anti-monopoly law" make a principle regulation, then the state administration for industry and commerce supplement and perfect it; The second is to involve the individual, the cartel organizers and industry associations into forgiveness scope, the subject of forgiveness shall initiate the application before the law enforcement agencies begins to investigation and not yet grasping the evidence, the law enforcement treatment of the first applicants fully exempted from punishment, the amplitude of the second and third places applicants given different breaks, forgiveness subject should stop be the illegal act immediately when required to stop the illegal practice; The third is introduce the criminal responsibility to the forgiveness the system,and based on surrender elements in the "criminal law", give the executives treatments of reduction punishment. About the fines scope of administrative responsibility should be cleared, increase the order to stop business operations for rectification, revoke the business license. And clear the way of civil liability for compensation, it is suggested that setting the compensatory damages to double the punitive damages; The fourth is setting uniform rules to coordinate the enforcement power between different departments, when rules can’t solve, it should be submitted to the common superior state council for a final decision. To enhance the overall independence of the law enforcement agencies step by step, establish the credibility of law enforcement agencies.