Study On The Legal Nature And Judicial Applicaiton Of Antitrust Guideline

According to news from the annual meeting of China's competition policy and law held recently,the number of antitrust cases has significantly increased.Anti-Monopoly Law of the People's Republic of China and its existing supporting provisions can not meet the needs of antitrust practice.Article 9 of the anti-monopoly law stipulates that the Anti-monopoly Committee of the State Council has the responsibility of formulating and issuing antitrust guidelines.The so-called guideline is just a normative form of the carrier.In our legal practice,the guideline does not belong to any form of legal norms stipulated in the "legislative law",but also rarely appear in our legal norms.The anti-monopoly law,however,did not clear the legal nature of the antitrust guideline and its application.At present,the "Guideline for the definition of the relevant market" has been implemented for many years,and the "Antitrust guideline for abusing of intellectual property",the"Antitrust guideline for automobile industry" and other four guidelines in the development.Therefore,it is very urgent and necessary to study the legal nature and application of antitrust guidelines.The prerequisite for study of antitrust guidelines is to clarify their justification.On the one hand,the Anti-Monopoly Law has the nature of uncertainty,which is the result of at least three reasons——the economic,policy and legal reasons.On the other hand,the traditional methods of legal interpretation used to solve such questions are difficult to solve for the uncertainty of problems of the Anti-Monopoly Law caused by certain reasons.Thus,the existence of antitrust guidelines has endogenous legitimacy.Whereas the diversity and complexity of the object of the antitrust guides and the normative content,it is necessary to classify guidelines from these two levels,so as to analyze the qualitation and judicial application of different types of normative content at different levels.The analysis of the legal nature of the antitrust guidelines should take into account that the elements contained in or relative to the normative documents,including formal elements and elements of content.As to the judicial application of antitrust guidelines,two aspects should be noticed.On one hand,it is necessary to examine the current judicial application situation and its access to justice of the "Guideline for the definition of the relevant market".On the other hand,the reality of the antitust-relevant litigation cases includes civil litigation cases and administrative litigation cases.Different types of guidelines and norms in different types of litigation may have different utility and application.It is noteworthy that the antitrust guidelines may face incidental judicial review in administrative proceedings.In addition,one of the important reasons for the introduction of antitrust guidelines in the drafting of the Anti-Monopoly Law is that the antitrust guidelines are an international practice in the field of anti-monopoly law enforcement.Therefore,combing and summarizing the experience of foreign countries on the antitrust guidelines is beneficial.The experience includes,the use of antitrust guidelines in the United States and the European Union,the distinctive standards in the US judiciary for legislative rules,interpretative rules and statements of policy,and the judicial review of administrative interpretations or administrative decisions by the European and American judiciary.Combined with all the above researches,from the perspective of self-explanatory,the antitrust guideline only has a guidance role to the executive authorities and a prejudicial role to the market subjects.From the perspective of the interpretation of the legal system,the effectiveness of antitrust guidelines is equal with that of competition policy and assessment reports.From the perspective of formal standards,the antitrust guidelines do not have the appearance of laws or other regulations.From the perspective of the contents,however,the antitrust guidelines may have substantial influence to quanlities and duties.As a result,antitrust guidelines may be subject to judicial review in administrative litigation cases.To change the delimma of the part of the norms in antitrust guidelines which have substantail effect but obstacles in the direct application,there are two approaches:to raise this part of the norms to the legislative level,or to regulate antitrust guidelines.