On The Institution Of Operator Commitment Of Anti-monopoly Law

Along with the social and economic development, the modern anti-monopoly law has showed a tendency of transforming from a simple means of punishment to multi humanization model. The traditional monopoly felony identified patterns has gradually faded away, then generating a system to solve the antitrust cases in moderate ways such as the commitment system of operators. The increasing importance of operators’ commitment system demonstrates the innovation and represents the new growth point of China’s anti-monopoly law enforcement. The operators commitment system discussed in this paper refers to the settlement agreement through voluntary negotiation reached between the operator and the anti-monopoly law enforcement agency in the process of the anti- monopoly law enforcement. It is stipulated in the agreement that the operator should abandon the alleged practice, eliminate the negative influence and promise not to be engaged in the similar practice. The anti- monopoly law enforcement agency should suspend the investigation procedures, supervise the operator’s commitment to its promise. After the operators have completely fulfilled their commitments, the investigation procedures should be terminated accordingly.Operators commitment system keeps pace with times and is the anti- monopoly enforcement system in modern law concept. The settlement agreement voluntarily reached between the investigated operators and the anti-monopoly law enforcement agencies can help saving the cost of justice, ease the conflict, quickly resolve antitrust cases and promote the recovering of market economic order. In 2008, the "anti-monopoly law" was officially implemented, thus operators commitment system has been widely used in judicial practice. While in practice operators commitment system problems has also gradually emerged, mainly reflected in obscure definition of the application of the system and the discretion of law enforcement agencies with which the power goes too beyond, the loss of protected rights of the stakeholders caused by the lack of procedural safeguards and the difficulty to trace accountability because of the failure in the supervision of operators’ commitment.This thesis chooses the commitment system of operators as the research object and focuses on the rationality of application system and analyses the possible problems that might arise in the process of application。This paper discussed the use of legal, economic analysis, comparative analysis, case studies and other methods, according to the logical structure of introduction, body and conclusion of the paper is divided into five parts. After the introductory section describes the operators as well as our commitment to the development process of the introduction of the system of the system, the main issues arise in practice.The first chapter of the operator promises reasonable and realistic to demonstrate the applicability of the system. By game theory, economics Pareto analysis; equality, order, freedom, justice, law principle value analysis; administrative contract theory, public and private law principles of administrative integration of theory describes the theoretical analysis of the reasonableness of the system. Conditions of antitrust enforcement, antitrust legislation uncertainty, plight of antitrust enforcement regime applicable illustrates the reality of rationality. Combined with China’s actual analysis of the current system perfecting the practice of real commitment rationality and positiveThe second chapter describes the current operator of China’s commitment to the main problems existing in the system and legislative experience outside reference. To prevent our commitment to system operators a "suspended" phenomenon in the legislative stage in the enforcement process of "acclimatization" phenomenon, this article seeks to analyze the applicability of the system operator commitment, feasibility problems in our country. This paper proposes the actual scope of the system is unknown, the interested party protection system is not perfect, breach of promise of the most prominent issues that exist in the system applies the process and so the responsibility is difficult to pursue. Overseas Experience, the chapter combines US Microsoft case, the case of Taiwan Intel introduced the legislation overview operators USA, European Union, Taiwan, China’s commitment to the system, and based on the analysis of its institutional features of the worth of our system to learn the characteristics of the to sum up.The third chapter of our commitment improves the system’s operator. This chapter aims to raise the aforementioned problems, analysis, optimization and effective measures to put our commitment to the system operator based on the experience of learning. This article in the former regulations, a matter to deal with, after three levels of supervision of the operator’s commitment to apply the system to improve the whole process put forward suggestions. Determine the scope, we propose to exclude negative and positive lists combined model. First, take the International GeneralPractice certainly excludes applicable and not applicable core cartels, monopolies major complex cases and new cases. Then determined based on the facts of the scope of our commitment to the system operator, including monopoly agreements, abuse of dominant market position, focused on three types of operators, and the exercise of discretion by the anti-monopoly law enforcement agencies on this basis. Procedural safeguards and interested protection, this paper draw on experience in the United States and the European Union’s legislative public hearing procedures and the introduction of market testing system to protect the interested party’s right to information, participation rights and remedies. By Tirole, the Nobel prized author in economy, who wrote a book named "industrial organization theory", made applicable in the system should improve the process of bargaining power of the government side. Finally, we propose to implement the system of post-supervision mechanism, the formation and implementation of an effective compliance monitoring mechanism acts committed in violation of legal accountability mechanisms.The last part of this paper is the conclusion. The main task is the analysis on the basis of the foregoing, the main contents of this paper summarized. Expect this article to improve the proposal commitment system operators able to "remedy" for China’s anti-monopoly legislation and law enforcement help.