Study On The Subject Qualifications Of Leniency Program In Anti-monopoly Law

The prosperous market environment is inseparable from a good competitive order,and competition is the driving force for the development of the market economy.However,various anti-competitive behaviors associated with competition have severely undermined the normal market competition order.The cartel,refers to the alliance of restricted trades reached by the operators of the same trade and is generally regarded as the most restrictive act to the normal market competition order.Since the promulgation of the Sherman Act in the United States at the end of the 19 th century,countries around the world have legislated to crack down on monopolistic behavior..Although countries have taken strict measures to prohibit cartels,the issue of monopoly of agreements had not been resolved in a period of time after the issuance of the anti-monopoly law.Operators are aiming to pursue the extra benefits brought by cartels.In order to evade the crackdown on law enforcement agencies,the cartel behavior of operators is increasingly hidden and the methods are more flexible.In particular,with the development of economic globalization,cartels occur more often among multinational corporations.The cartel has a wider range of influence,which will cause greater damage to consumer rights and damage to the market order.Due to the concealment and transnational nature of cartels,it is difficult for law enforcement agencies to know whether there is a cartel or not,and obtain strong evidence that could prove the existing of cartels through investigations.In the long-term anti-monopoly exploration and practice,European and American anti-monopoly enforcers realized that relying solely on their own strengths cannot effectively solve cartels which are numerous and covert.In particular,with the rapid development of the market economy,the total market volume has been increasing,and monopolistic behaviors have also become more frequent.Law enforcers need to resort to “reverse action” from participants in cartels to increase their efficiency in handling cases.Based on the above considerations,the U.S.Department of Justice took the lead in adopting the leniency program in 1978.It used the leniency to deal with the offender's illegal behavior as a bait,and encouraged the participants of the cooperation cartel to cooperate with anti-trust agencies through providing evidence of the presence of a cartel so as to improve the efficiency of cracking cartels and effectively deter potential cartels.Afterwards,due to issues such as the lack of clear qualifications of the subject,the results of the implementation of the program were poor.In order to improve the effectiveness of the application of the program,the United States passed the " Corporate Leniency Policy" in 1993 and the " Individual Leniency Policy" in 1994 to improve the program.The implementation of theleniency program has made significant progress in the anti-monopoly law enforcement work of the United States,and many countries learn from it.China began to apply leniency program in 2008.At present,leniency program has been implemented in more than 80 countries,regions and economies and has achieved good effects in many countries.The application of the leniency program has achieved remarkable results in many countries and economies.For example,since the " Corporate Leniency Policy" and the " Individual Leniency Policy" has enforced,the annual monopoly cases reported by the United States have exceeded 20 times that of the past.But in China,since the implementation of the “Anti-Monopoly Law” in 2008,there were only 26 monopolized agreements in China's industrial and commercial systems at the end of2017.Due to the existence of the confidentiality system,we have no way of knowing which enterprises have applied for leniency program.However,judging from the number of monopoly cases investigated and dealt with,the number of cartel cases is very small,and the gap with the United States and other countries is so great that it is inconsistent with the position of the world's second largest economy of China.The above facts indicate that the current leniency program in our country has not been effectively implemented.Among the problems faced by leniency program,how to clearly define the subject qualifications of leniency program is particularly important.Excessively strict subject qualifications will result in fewer qualified whistle-blowers.The number of cartels investigated through leniency program will be less.If law-enforcers intend to investigate other large-scale cartels,they will need to increasetheir law enforcement costs,which runs counter to the original purpose of the leniency program.And overly broad subject qualifications may lead to misuse of leniency program.Because the illegal cost is too low,the operators are more unscrupulous in participating in cartels,which obviously also deviates from the purpose of leniency program.In particular,under the current situation where China's current rules on the qualifications of the leniency program are incomplete,the specific regulations are relatively backward,and the overall framework is flawed,it is necessary to clarify the relevant provisions of the subject qualifications of leniency program and to improve the matching regulations of the subject qualifications of leniency program.Through the introduction and analysis of the relevant provisions of the subject qualifications of leniency program in developed countries and economies,the relevant provisions of the subject qualifications of leniency program in our country are different from other countries and economies in three aspects.First,the criteria for negative subject qualifications in leniency program should adopt the“leader,” “organizer,” or “coercive” criteria.Second,the differences in the status of individuals in leniency program under different legal systems.Third,the contrast of the treatment that the subject of leniency program obtained under different legal systems.Through the differences in these three aspects,three issues are raised for the relevant provisions of the subject qualifications of the current leniency program in China.First,the criteria for the determination of the qualifications of the negative subjects in China's leniency program should adopt the criteria of “leader”,“organizer”or “coercion”? Second,do individuals should be the subject of the leniency program;thirdly,should Industry associations be the subject of the leniency program?This article will also use the aforementioned three issues as a clue,and provide ideas for solving the problems encountered in China's leniency program in the end.The following is my brief answer to the above three questions.1.Abandon the "leaders" and "organizers" criteria,and instead use the "coercion" standard to define the negative subject qualifications of leniency program.2.Establish a comprehensive personal leniency program in China;3.Include industry associations as the subject of the leniency program.