Research On The Resumption Of Investigation In Operator Commitment System

As one of the Anti-monopoly Law enforcement methods,the operator commitment system is more and more favored by the anti-monopoly law enforcement agencies and operators.The resumption of investigation is an important part of the operator commitment system.To clarify the situation,procedure,subject and responsibility of the investigation is helpful to perfect the operator commitment system,and also has important realistic and theoretical significance to promote the Anti-monopoly Law enforcement in China.Except the first part,this article is based on the "research status-find problems-put forward countermeasures" ideas.First,introduce the basic knowledge of The resumption of investigation,lay the foundation for the whole research.The applicable situation,subject,procedure and responsibility are the core elements to the resumption of investigation.This paper analyzes these four elements,finds out the deficiencies,and puts forward some suggestions.In addition to the introduction and conclusion,this paper is divided into five parts.Part one: overview of the resumption of investigation in operator commitment system.First of all,this paper briefly introduces the relevant concepts and theories of operator commitment and the resumption of investigation.Then,from the angle of deterrence function and relief function,the necessity of resuming investigation is analyzed.Part two: the circumstances to resume investigation in operator commitment system.First of all,this article explores the problems in the circumstances for resuming investigation.On the one hand,in the legislative model,the enumerated legislative model adopted by our country has such problems as narrow scope of application and lack of restrictions on the authority for enforcement of the Anti-monopoly Law.On the other hand,in the specific circumstances,circumstance 1 didn't distinguish different non-performance of undertakings,all the cases of incomplete fulfillment of commitments are resumed investigation.The facts and major changes referred to circumstance 2 are not clear.Circumstance 3 is too large.Then,the article put forward the corresponding suggestions for the above problems.For the legislative model,it needs to take the advantages of enumerative legislative model and summarizing the legislative mode.After enumerating the circumstances to resume investigation,add fallback provisions.For circumstance 1,the incomplete performance of the commitment can be divided into two parts: the incomplete performance of the promises that can cause the resumption of the investigation and the incomplete performance of the promises that will not lead to resumption of the investigation,and further clarify the distinction between the two standards.Next,judge whether it belongs to complete fulfillment based on the standard of quantity,and then judge whether it belongs to the incomplete performance which can cause the resumption of investigation according to the quality standard.For circumstance 2,the facts on which the decision to suspend the investigation is based can be embodied as alleged monopolistic behavior,market power and competitive environment.Major changes are the changes that will result in the undertakings' promise can't eliminate the negative consequences.For circumstance 3,untruthful and incomplete information should be limited to information that might give Anti-monopoly Law enforcement agencies misperceptions about the nature or severity of the alleged monopoly.Part three: the main body of the resumption of investigation in operator commitment system.First of all,it is clear that the main body of the restoration investigation is divided into the application body and the initiation body.There are two problems in the provisions of the Anti-monopoly Law on the initiation of the main body.That is,the surveyed operator has no right to apply for resumption of investigation.The scope of consumers and other operators not clear.This paper argues that the investigation operators,consumers and other operators need to be given the right to resume investigation.Both consumers in a particular transaction and potential customers should have the right to apply for reinstatement of the investigation.However,operators without the qualification of the main business do not have the right.Part four: procedures for resuming Investigations in operator commitment system.The study found that the procedure had the following problems: from application to examination to the resumption of investigation decision,the investigated operators did not have the chance to prove innocence;the review of formal examination or substantive examination by Anti-monopoly Law enforcement agencies was not clear;there is a lack of rules for applying for reinstatement of the investigation.This paper argues that it is necessary to give the operators involved the right to participate,establish the "application body—the operator under investigation—Anti-monopoly Law enforcement agencies" start-up mechanism for the resumption of investigation,and clarify the way in which the anti-trust law enforcement agencies examine the case as substantive examination.In addition,the resumption of investigation may be applied only on the basis of new facts.Part five: the legal responsibility of the operator after resuming investigation.First of all,in this paper,the responsibility of the operator after the resumption of the investigation specifically refers to the responsibility of the undertakings in resuming the investigation due to the fault of the operator.Then,find the existing problems for it: Anti-monopoly Law enforcement agencies have too much discretion,whether the model of "heavy fines" is irrational or not,and whether the operators should still be responsible when not constituting a monopoly,so as to deal with what kinds of penalties the operators impose.Therefore,it is necessary to determine the constituent elements of the responsibility of the operator.The anti-monopoly law enforcement agencies shall punish the operators strictly with the elements of the composition as the standard,no longer make the precondition of constituting the monopoly.The responsibility of the operators should be taken in the form of a reputation penalty plus a fine.