The Study On Discretionary Factors Of Anti-Monopoly Fines

The anti-monopoly law sanctions of all countries in the world are basically centered on fines.China's anti-monopoly law stipulates the fines and the confiscation of illegal income.Among them,Anti-monopoly fines are set in the form of double-rate and time-based fines,that is,fines ranging from 1% to 10% is based on the sales in the previous year.This flexible fine rule allows the anti-monopoly law enforcement agencies to enjoy higher discretion.In order to restrict this fine discretion,Article 49 of the Anti-Monopoly Law of our country stipulates the discretionary factors which should be considered when fines are imposed.Through a comprehensive review of the discretionary factors of China's anti-monopoly typical fine cases,it is found that there are uncertainties,ambiguities,unclear specifics,statutory discretion factors and arbitrary factors of arbitrary discretionary factors in China.These problems have led to the lack of transparency and operability of the anti-monopoly fine system,which makes the discretionary power of the administrative law enforcement agencies to impose fines on illegal enterprises too large,and also affects the realization of the purpose of fine deterrence.By analyzing foreign anti-monopoly fines guidelines,it is not difficult to find that the discretionary factors of discretionary fines in various countries are closely related to the guidelines of fines,and the discretionary factors are generally used to implement discretionary factors.The structure of the anti-monopoly fine discretion factors in these countries generally includes the main factors(severity and duration)of fines,the adjustment factors(aggravating and mitigating factors)of fines,and the special discretion(adjustment)factors of fines(leniency,reconciliation,inability etc.).Judging from the current anti-monopoly fine cases in China,the anti-monopoly law enforcement agencies have not clearly stated the internal relationship between the fine discretion method and the discretion factor in the steps and methods of anti-monopoly fines.In order to improve the certainty of anti-monopoly fines and overcome theambiguity of discretionary factors,it is suggested to optimize the discretionary factors of anti-monopoly fines through the three paths of statutory,typology and refinement to perfect the anti-monopoly fine discretion factors.