Research On The Commitment System Of Anti-Monopoly Law

The vitality of law lies in implementation. The effective implementation of the anti-monopoly law has the very vital significance to prevent monopoly and maintain fair competition in the market, protect the interests of consumers and social public interests, promote the healthy development of socialist market economy. While due to the complexity of some antitrust facts, the tangled interests, judicial difficulties,the difficulty of antitrust enforcement is greatly increased. Traditional way of law enforcement can hardly punish monopolistic behavior quickly and effectively. Based on improving the efficiency of law enforcement, saving the cost of law enforcement,the commitment system of anti-monopoly law(hereinafter referred to as "commitment system") came into being. The commitment system is point to in the process of investigation, if the operator has promised to stop or change the behavior accused and take steps to eliminate the adverse consequences, and the law enforcement agency believes the promised content, then it can accept the commitment without subsequent enforcement proceedings. It originated in the United States, as a kind of "low cost and high efficiency" flexible way of law enforcement which was widely applied by the anti-monopoly law enforcement practice for it overcomes the difficulties of antitrust enforcement ably. The article 45 of anti-monopoly law of the People’s Republic of China(hereinafter referred to as "anti-monopoly law") makes the rule of the commitment system,and it marks the establishment of the system in our country, which is a great significance to our country’s anti-monopoly law enforcement. But our current legislation related commitments system is too simple and lack of specific safeguards, so that there are many risks in the commitment system applicable process. Therefore, the way to overcome the shortcoming of commitment system, and to achieve the purpose of anti-monopoly law enforcement is our current problems to be solved. In this paper,the author attempts to examine the legislation and enforcement practice of the commitment system in the developed countries in order to find out the differences,and propounds specific suggestions to perfect the system combining with the actual situation of our country.This article is divided into four parts altogether, including the following contents:The first part: the overview of the commitment system of anti-monopoly law. It mainly expounds the connotation of the commitment system of anti-monopoly law,this paper introduces the origin and development of the system, analyzes the nature and the values of the commitment system.The second part: the risks in the commitment system of anti-monopoly law. It mainly analyzes the risks from the stages of the starting, negotiation and implementation of the commitment system in our country. Among them, the risks in the start-up include a single way, unknown prerequisite provisions and unqualified applicable scope; the risks in the negotiation phase include that the discretion of law enforcement agencies is too large, lacking of the third party interests and public interests protection; the risks in the implementation phase include lacking of supervision and imperfect restriction mechanism for law enforcement.The third part: external investigation on the commitment system of anti-monopoly law. In order to avoid the commitment system was overused in antitrust enforcement and the risk is uncontrollable, many developed countries have been restricted its scope, it mainly investigates the commitment system in the United States, the European Union and Japan, analyze and summarize the way of limiting the scope of the commitment system. Furthermore, due to the lack of appropriate mechanisms to protect the rights of the third party in its application, it is not conducive to the legislative purpose of our "anti-monopoly law". Therefore, the establish mechanisms to safeguard the interests of the third party is also very important. This part mainly introduces that other countries establish a series of mechanisms to enhance the transparency of the commitment in the protection of the third person interests, such as the United States and the European Union.The fourth part: improvement the commitment system of anti-monopoly law in our country. This part proposes the corresponding perfecting suggestion mainly aimed at the risks in the three stages of which have been mentioned in the third part.Among them, in the start-up phase, it should have a clear commitment system start-up mode, limited the applicable conditions and suitable scope of the commitment system. In the negotiation phase, it needs to rationalize the purview of law enforcement agencies, to establish the third party and public interests protection mechanisms. In the implementation phase, it needs to set supervision specialized oversight bodies, to establish the punishment mechanism of violating the promises.