An Analysis Of The Commitment System In China’s "Anti Monopoly Law"

In the field of anti-monopoly law, the operator commitment system originated in the United States, mainly including two forms: "consent judgment or decree" and "consent order".“Commitment decision”, stipulated in “ Regulation 1 / 2003 on the Implementation of Article 81 and Article 82 of the Treaty about the Competition Rules "( hereinafter referred to as prescribed in the “Regulation 1 / 2003”), which was promulgated by EC Council on December 16, 2002, "consent decree" issued by Japan’s Fair Trade Commission, and administrative reconciliation in implementing the" fair trade law "in Taiwan area of our country, are examples of the commitment system in the field of anti-monopoly law.China’s "anti monopoly law", which was implemented in 2008, also introduced the operator commitment system, as was written in the forty-fifth provision :" when anti monopoly law executing agencies investigate alleged monopolistic behavior, if the operators promise to take concrete actions to eliminate the consequences of said behavior within the period of the anti monopoly law executing agencies’ approval, the executing agencies can decide to suspend the investigation. The notification of suspending the investigation shall state the specific contents of the commitments of the operator under investigation. Anti monopoly law executing agencies shall supervise the operator to fulfill its commitment in times of suspending the investigation. In cases that the operator fulfilled its commitment, anti monopoly law executing agencies can decide to terminate the investigation.”Since the implementation of the “ anti monopoly law”, more and more antitrust cases have been closed through operator commitment system, for instance, the well known China Telecom, China Unicom antitrust case in 2011, was finally closed by the National Development and Reform Commission’s acceptance of the two companies’ "rectification commitment". According to statistics, "over 60% of the antitrust disputes dealt by United States Department of Justice were solved in the way of ‘consent decree’". [see Richard A. Epstein, Antitrust consent Decrees in theory and Practices: why less is more, the AEI press, 2007, p.1.] " Since the implementation of EC commitment decision on May 1, 2004, about half non core cartel cases have been closed by application of that." [See George Stephanov Georgiev, Contagious Efficiency: The Growing Reliance on U.S.-- Style Antitrust Settlements in EU Law, 2007, Utah L. Rev. 971. P.999.]The reason for the rapid development and wide application of the operator’s commitment system in the world is that compared to the traditional way of anti-monopoly law enforcement, the operator’s commitment system owns many indisputable advantages. For example, its flexibility helps overcome the inconvenience in application of antitrust law caused by ambiguity of the law and uncertainty of antitrust policies; compared with "a pole to the end” kind of survey in the traditional way of anti monopoly law enforcement, operator commitment system can greatly save the cost and improve the efficiency of law enforcement; the fact that cases were closed through the negotiation of the law executing agencies and the alleged operator reflects the participation of operators in the law enforcement, which conforms to the trend of development of modern law and contributes to the realization of substantive justice, and so on.But because our reference to EU commitment decision system is not comprehensive, and our practice experience is insufficient, thus operator commitment system in our country shows some defects such as applicable scope not clearly defined; lack of protection of interests of the third party and protection of public interest, power imbalance between law executing agencies and operators, lack of penalty mechanism in default of commitment, etc. In view of this, our country’s operator commitment system can be improved from the following aspects.First, state clear the scope of application. Serious violations of anti monopoly law and cases in which illegal evidences are irrefutable should be excluded from application of the commitment system; in contrary, when the cost of investigation is high and the illegality of operator’s behavior is arguable, it should be suggested to apply the operators commitment system. Second, establish operators’ power security mechanism. Endow operators with right to request a change of the commitment decision or other ways of relief if the situation has changed. Third, establish public interest and the interests of the third party protection mechanism. We could refer to commitment decision explanation system and the system of public notice in other countries. Fourth, establish punishment mechanism in case of default of commitment, including the restoration of investigation, penalty and reputation penalty.