Research On Leniency Policy Of China’s Anti-monopoly Law

Monopoly agreement is one of the most common and typical monopoly behaviors in economic life,which is harmful to market competition.Because of its long duration and great concealment,antitrust law enforcement agencies are difficult to find.Even if found,its investigation and identification can also consume a lot of law enforcement resources.In order to effectively crack down on monopoly agreements,leniency policy of anti-monopoly law came into being.Article 46,paragraph 2,of the Anti-monopoly Law of our country can be regarded as an important source of law for leniency policy of the Anti-monopoly Law.Such a complicated legal system only uses one clause to stipulate,which shows its rudeness.Even if there are detailed provisions of departmental rules,there are still many problems,such as the specific connotation of leniency policy,the operating basis,the normative intent,the shortcomings of relevant legal norms,the difficulties in the implementation of leniency policy,and so on.By comparing the three legislative cases of the United States,Japan and Europe,we can see that in defining the connotation of the forgiveness system of China’s anti-monopoly law,we should not only learn from the mature legislative experience of foreign countries,but also consider the practical experience of China’s anti-monopoly legal liability system,the legal provisions of the current forgiveness system of Anti-monopoly law and historical traditions.Then,from the analysis of the "prisoner’s dilemma" theory,we can see that the appropriate system of anti-monopoly legal liability for deterrence is the necessary operating basis of the forgiveness system of anti-monopoly law.But this is not enough.We also need transparent and definite legal norms of anti-monopoly forgiveness and strict and efficient anti-monopoly law enforcement system to jointly organize the "basic network" of anti-monopoly law forgiveness system.What is the normative intent of the forgiveness system of anti-monopoly law? This should be analyzed from the legislative background,the legal provisions themselves and the legal norm system.It is concluded that the core normative intent is to effectively investigate and deal with cases and save social resources;the direct normative intent is to obtain relevant information and important evidence for reaching monopoly agreements,and the tools for operators to protect themselves;the general normative intent is consistent with Article 1 of the Anti-monopoly Law.In fact,since the establishment of leniency policy of anti-monopoly law,there have been praises and criticisms,such as the effect of implementation and violation of ethics and morality.However,after some system evaluation,it is found that although on the surface,leniency policy of anti-monopoly law encourages operators to violate the spirit of contract,in essence,leniency policy of anti-monopoly law is based on respect for the spirit of contract and maintenance of market order from the analysis of the necessary restrictions of law on the spirit of contract,the class nature of law and the theory of social contract.Although leniency policy of anti-monopoly law violates ethics and morals because of its informing behavior,it can effectively combat monopoly agreements,maintain market competition order and consumer welfare,and pursue overall economic benefits,thus gaining legal affirmation.This is a trade-off between interests.In addition,leniency policy of anti-monopoly law also has its institutional value,which mainly embodies in three aspects: maintaining market economic order,protecting consumers of social welfare and improving the efficiency of law enforcement,so as to provide more powerful support for the rationality of the system.For the study of a legal system,there are two main points of view: legal rules and their implementation.Therefore,by examining the current legal norms of leniency policy of the anti-monopoly law in China,we find that the existing forgiveness system of the anti-monopoly law in China has some legislative problems,such as too broad scope of application,unclear applicable conditions,rough legal consequences,and lack of proprietary procedure system.Then,it inspects the specific implementation of the above-mentioned legal norms.From the analysis of 13 typical cases selected,it is found that the system of forgiveness of anti-monopoly law in our country has difficulties in the implementation of the impact of the system of forgiveness of anti-monopoly law on the function of monopoly agreement,the negative conditions of forgiveness subject and the number of applicable standards,the confusion of applicants’ cooperation obligations and the elements of stopping illegal acts,and the system of administrative penalty reduction and exemption on the system of forgiveness of anti-monopoly law.There are deep-seated reasons for these dilemmas,including the insufficient supply of the legal system of forgiveness,the insufficient deterrent of the anti-monopoly administrative penalty system,and the poor law enforcement ability of the anti-monopoly law enforcement agencies.In the face of the above-mentioned problems of legislation and application of leniency policy of anti-monopoly law,we need to improve from the following aspects: first,improve the substantive norms of leniency policy of anti-monopoly law,including limiting the scope of application,defining the applicable conditions,and reasonably designing the forgiveness treatment.Secondly,the procedural system of forgiveness system of anti-monopoly law should be constructed,including pre-consultation system,marking system and confidentiality system.Third,improve the relevant legal system of the anti-monopoly law.It includes perfecting the administrative penalty system of anti-monopoly and improving the law enforcement efficiency of anti-monopoly law enforcement agencies.