Legal Study On Administrative Law’s Involvement In The Regulation Of Administrative Monopoly

Experiences from abroad and domestic in the practices of anti-monopoly show that Administrative Monopoly may produce even more harms to the market than Economic Monopoly, which may destroy the operating organism of the market fundamentally. Administrative Monopoly is one of the biggest obstruction of the establishment of Chinese socialistic market-oriented economy, and meanwhile it also hiders the revolution of Chinese administrative system. Thus, it’s significant to regulate Administrative Monopoly to safeguard the independent development of market-oriented economy and promote the revolution of Chinese administrative system. Experiences from the past seven years’ implementation of Anti-Monopoly Law indicate that the effect of the regulation on Administrative Monopoly by Anti-Monopoly Law is far from satisfaction due to the lack of relevant supporting mechanism. The root cause for such failure is that the causes of Administrative Monopoly and Economic Monopoly are materially different, and the traditional route for regulating Economic Monopoly can’t be applied to Administrative Monopoly. After Administrative Procedure Law being amended, the regulation on Administrative Monopoly should be conducted based upon the provisions of Anti-Monopoly Law and fully utilize the advantages of Administrative Law according to the idea of ‘Restricting Administrative Powers’, and eventually establishing the comprehensive legal system for the regulation on Administrative Monopoly.Usually, Administrative Monopoly refers to a kind of monopoly which results from Government’s improper involvement in the operation of market-oriented economy. The definition of Administrative Monopoly in Chinese Anti-Monopoly Law is, the acts excluding, restricting competitions implemented by governments, its departments or organizations authorized to govern public affairs, which are illegal. Administrative Monopoly isn’t endemic to China, it’s also a common phenomenon around the world. It has different manifestations in different countries. For example, it refers to the anti-competitive practices from State Governments in order to maintain the States’ economic orders in America, and the protections on public utility enterprises in EU etc.Administrative Monopoly usually may be divided into two categories, namely Regional Monopoly and Industrial Monopoly, which almost includes all the types of monopolies. They will be discussed most frequently hereinafter. But, sometimes it’s more difficult and important to distinguish between Administrative Monopoly and Economic Monopoly. The comparison of the two helps to find out the real causes of the generation and operation of Administrative Monopoly and thus provides an path to research how to regulate Administrative Monopoly.Based on the analysis of the cause of the generation of Administrative Monopoly, We may come to a conclusion that the generation and preservation of Administrative Monopoly connect closely to the interest incentives produced by Administrative Monopoly, from which several interest group, such as local governments, officials, may benefit a lot both economically and politically. Thus, it directs us to make more restrictions on the local governments, officials so that they dare not to implement Administrative Monopoly directly or indirectly.The main reason for the poor performance of the regulation on Administrative Monopoly should be accused mostly to the legislation on Anti-Monopoly Law, which lacks rigorous liability system, and can’t be handled by judicial method, but contains weak regulation measures. Under such circumstances, we can’t expect Administrative Monopoly to be regulated by Anti-Monopoly Law alone, but to invite other laws to participate in the regulation. And Administrative Law can provide such kind of regulation on the exercise of Administrative Powers, which is the core element of the regulation on Administrative Monopoly. Especially, after the amendments to the Law of Administrative Procedure, Administrative Monopoly may be sued for its violation of Anti-Monopoly Law, which should rely on the application of Administrative Law. In order to better regulate Administrative Monopoly, we have to coordinate Anti-Monopoly Law and Administrative Law in several ways, so that we can regulate Administrative Monopoly in two paths, one for administrative and one for judicial. First of all, we need to improve the legislation on both laws; Secondly, we have to allocate the jurisdiction on Administrative Monopoly; Last, a coordination mechanism should be built to deal with the communication between Anti-Monopoly Bureau and Judicial Authority.