Research On Obstacles To The Implementation Of China's Anti-Monopoly Law

At present,China's anti-monopoly implementation is mainly based on administrative law enforcement,supplemented by judicial decisions.The outstanding problems in administrative law enforcement are selective law enforcement and “exercise” law enforcement.The main issues of judicial adjudication are the small number of cases filed and the plaintiff's low win rate.In order to solve the above problems,from 2008 to 2017,more than 50 scholars in about 100 representative research literature,through comparative research,proposed the following two types of programs: The first is to establish a unified anti-monopoly law enforcement agency,This institution should be specialized,professional,and more independent than the general administrative agency.The members of the organization should not be responsible for other organizations.The second category is to improve the implementation of the judicial review rules,so that ant-imonopoly judicial cases are filed.The first type of solution was mentioned since 2008 and it was not implemented until 2018.For the second type of solution,the Supreme People's Court issued a relevant judicial interpretation in 2012.The anti-monopoly civil lawsuit has certain operability,but the main problems in the anti-monopoly civil lawsuit have not been resolved.The poor performance of the implementation of these two types of solutions reflects the failure of existing solutions.The direct cause of the failure of the plan is the obstacles encountered in the implementation of the solutions.These obstacles are also obstacles to the deep implementation and improvement of the anti-monopoly law.By analyzing the match between each entity's value objectives with the implementation of the anti-monopoly law and the risk of adjusting its own interests in the implementation of the anti-monopoly law,we find that vested interest groups are often highly deviated from the value objectives of the anti-monopoly law implementation and are self-interested.Faced with the risk of being severely adjusted,vested interest groups are an important obstacle to the implementation of the anti-monopoly law.The vested interest groups are divided into institutional vested interest groups and corporate vested interest groups.Institutionalized vested interest groups institutionalize and nationalize institutional interests: On the one hand,the National Development and Reform Commission,the State Administration for Industry and Commerce,and the Ministry of Commerce that enjoy the power of anti-monopoly administrative law enforcement have the power to retain departmental powers and are reluctant to grant antitrust enforcement powers to resist the establishment of a unified system.The anti-monopoly law enforcement agencies;On the other hand,industry supervisory agencies or industry associations that do not enjoy the power of anti-monopoly administrative law enforcement often do not cooperate with or resist the investigations of the anti-monopoly law enforcement agencies because of the special nature of the industry.The state-owned enterprises established on the monopoly industries are corporate-type vested interest groups.In the implementation of the anti-monopoly law,favorable conditions for the company-type vested interest groups to use the anti-monopoly law to exempt their own industries will be alienation of industry exemptions is a specific monopoly behavior exemption.In order to effectively identify the problems of vested interest groups and improving the effectiveness of solutions,we should be guided by problems and establish a Chinese consciousness for research.In response to institutional vested interest groups: In the process of implementing the “Strengthening of the Party and State Institutional Reform Plan” to form a unified anti-monopoly administrative law enforcement agency,it will be based on the right to file,investigate,punish,and supervise the anti-monopoly implementation.The State Administration for Industry and Commerce,the Ministry of Commerce,the National Development and Reform Commission,and other personnel reconfigured and allocated.For corporate-type vested interest groups: The object of exemption from the anti-monopoly law has changed from industry to specific behavior,with behavioral exemptions as the norm and industry exemptions as exceptions.Against the problem of weak civil lawsuits: The plaintiff of an anti-monopoly civil lawsuit was defined as the business,consumer,or other organization that suffered direct damage due to a monopolistic behavior,and increased the burden of proof of the defendant.