A Study On The Discretion Of The Operator's Centralized Anti-monopoly Law Enforcement

Discretion is the life of administration.With the rapid development of human society,the function of administration and supervision of administrative organizations have been strengthened.As an important power of administrative organizations,its existence has inevitability in modern society.It exists in the whole process of the execution of the law enforcement power of the law-enforcement agencies,and involves all aspects of social life.The exploration and research of administrative discretion is an eternal subject.At present,most studies focus on the field of tax law enforcement discretion,the discretion of administrative punishment,as well as urban management law enforcement discretion,etc.But the number of research on the discretion of antitrust law enforcement is very little.Most of the researches are also focused on law enforcement procedures or economic entities.With the establishment of the antimonopoly legal system,the anti-monopoly law enforcement has entered a new stage,and puts forward the higher requirements for the openness and professionalism.The department of commerce has a series of powers to investigate and deal with the antimonopoly law enforcement.Discretion exists in the case filing,review until the decision.However,the anti-monopoly law is still in the initial stage of exploration,the relevant regulations is not mature and the supervision mechanism is not perfect.Coupled with the high position and great power,the exercise of discretion is very easy to go beyond the necessary control,bringing about arbitrary or abuse of discretion.Therefore,it is necessary to regulate the exercise of discretion properly.According to the practice of anti-monopoly law enforcement of the Ministry of commerce,this paper tries to analyze the problems in the exercise of discretion in the light of the concept of economic field,and put forward to some regulations.This paper is divided into three parts:The first part gives a brief overview of the basic theoretical issues of the article,analyzing the necessity and purpose of the existence of the discretion of the operator's centralized anti-monopoly law enforcement.The analysis starts from the necessity of the existence,and then expounds the necessity of the existence of discretion in the field of anti-monopoly law enforcement.The purpose of the analysis of law enforcement discretion is to make up for the blank of law,to improve the efficiency of law enforcement and to safeguard the national security.The second part is the focus of the article.By the horizontal and vertical combing of the announcement,and according to the activities of the Ministry of Commerce anti-monopoly law enforcement,the author try to find he performance of the discretion of the Ministry of Commerce.The performance of the discretion is investigated from the aspects of filing,investigation,handling,procedural discretion to administrative penalty discretion.And with the announcement as an argument,the author try to enumerate the performance of the discretion of the Ministry of Commerce in the process of law enforcement,and analyze the problems of the exercise of the power.In the third part,based on the problems and reasons of the discretion of the Ministry of Commerce,the author puts forward that the discretion of anti-monopoly law enforcement should be controlled.This paper analyzes the abuse and the performance of the discretionary power of law enforcement,the causes of abuse,and the ways to control it.The main way to control the power is to play the role of restraint of legal principles.There are two ways of internal control and external control.Among them,the author focuses on the analysis of the development and perfection of the law enforcement procedure.And external control can be divided into legislative control,judicial control and social supervision mechanism.