The Empirical Study Of The Disgorgement System In China's Anti-monopoly Law

As an important component of the administrative responsibility of Anti-monopoly law,the disgorgement system is aimed at eliminating the motives of the operators to carry out the illegal activities from the root causes by recovering the improper gains received by the operators in their monopolistic practices.The system of disgorgement in China's Anti-monopoly law has gone through three stages,including the embryonic period of Anti-monopoly only for part of the monopoly behavior before the introduction of the Anti-monopoly law,while the provision is too principled but in a period of constant development.and gradual improvement.Based on the difficult calculation of illegal income and the difficulties of forfeiture and so on,after ten years of implementation,law enforcement practice has gradually formed a controversy over whether disgorgement should be retained.This article starts with the necessity of keeping the system of disgorgement in our country,and considers that improving the system of disgorgement is the proper meaning of Anti-monopoly relief,the realistic need of perfecting Anti-monopoly legal liability,and the important means of realizing the optimal means of antitrust deterrence.It is of great significance to uphold the disgorgement for the prevention and suppression of monopolistic behavior and safeguarding the interests of consumers and the public interests.At present,our country Anti-monopoly law disgorgement also has three big law enforcement predicament urgently need to be resolved,including the illegal income cognizance standard to be difficult to unify,the illegal income which flows into the third party enterprise is difficult to confiscate,and the connection of disgorgement and other Anti-monopoly relief measures is not smooth.This paper examines the relatively mature national legislation and practical experience of antitrust law such as the United States,the European Union,Germany,Japan and Brazil.Based on the systematic review and summary of the antitrust enforcement cases in our country,this paper proposes solutions to the specific problems.In terms of standardizing the recognition of illegal income,the scope of application of"principle plus exception" of illegal income is clearly stipulated.The calculation standard of unification of illegal income is the additional income obtained by the operator due to the monopolistic behavior.In the case of typical monopoly abuse of market dominance cases,aiming at how to build a way of recovering the illegal income inflow into third-party enterprises,this paper examines and analyzes the beneficial experience of Brazilian competition law and proposes that when the third-party enterprises and the dominant operators When there is a collusion relationship,the enterprise may try to introduce joint and several liability in the disgorgement.When a third-party enterprise is innocently wrongly used,it may deny the rules to recover the illegal gains by introducing legal personality.In clarifying the relationship between the disgorgement and other antitrust relief measures,the disgorgement as compensatory relief measures and administrative penalties as punitive relief measures are mutually supportive,and the return of the illegal proceeds to the victims is prioritized and the subsequent applicable order is confiscated.Construct the deadline of trusteeship of confiscated illegal proceeds,deal with the relationship between civil damages and disgorgement,and constantly improve the Anti-monopoly law disgorgement system.