Study On The Legal Responsibility Of The Administrative Monopoly Beneficiary Undertakings

The administrative monopoly beneficiary undertaking refers to the business operator who participates in the decision-making or implementation of the administrative monopoly and has a relatively direct relationship with an administrative subject,thereby intentionally or unintentionally,actively or passively obtaining monopoly profits or competitive advantages.The beneficiary undertakings may participate in various types of administrative monopoly activities,which is a key fulcrum for administrative entities to abuse administrative power to intervene in market activities.Stipulating the legal responsibilities of beneficiary undertakings can help curb administrative monopoly.The beneficiary undertakings have different subjective attitudes in participating in the administrative monopoly,and the relationship with the administrative subject is different.Therefore,they should be treated differently when determining legal liability.The legislation on the legal responsibilities of administrative monopoly beneficiary undertakings in China's current Anti-Monopoly Law and relevant department regulations is not clearly shown in the following:First,in principle,the beneficiary undertakings implementing monopoly can be illegally identified and punished in accordance with the general economic monopoly rules,but the current legislation on the behavior of the beneficiary undertakings does not provide clear guidance on whether and how to consider the administrative monopoly factor;Second,the beneficiary undertaking participates in the administrative monopoly to capture unjustified interests,which doesn't constitute a monopolistic behavior,but there is no legal basis for the illegal identification and punishment of its behavior;Third,Article 32 of the Interim Regulations on Prohibition of Monopoly Agreements and Article 37 of the Interim Regulations on the Abuse of Dominance of Market Dominant Status are not clear about the criteria for "passive compliance with administrative orders",which may result in the punishable person not being punished or those who should not be punished are punished;Fourth,the current legislation does not specify the types of legal liability and the distinction between the various types of beneficiary undertakings.The anti-administrative monopoly legislation in our country pays too much attention to "administrative power abuse leads to administrative monopoly",ignoring that administrative power can only ultimately damage market competition through the beneficiary undertakings as market intermediaries;which is the main reason for the unclear legal responsibility of the beneficiary undertakings of administrative monopoly.The unclear legal responsibilities of the beneficiary undertakings of administrative monopolies can easily lead to differences in understanding at the law enforcement level,resulting in different standards of law enforcement,seriously weakening the credibility of law enforcement and justice,and not conducive to the protection of the legitimate rights and interests of consumers and operators,but also unfavorable to curb administrative monopolies and maintain the unity of the legal system.This article is based on the analysis of administrative law enforcement cases.By combing the status and problems of the legal liability of the beneficiary undertakings,elaborating the necessity and theoretical basis of the legal liability of the beneficiary undertakings,and drawing on the experience of legislation of the legal liability of the beneficiary undertakings in countries or regions outside the region,this article makes suggestions on clarifying the legal liability of the beneficiary undertakings.It is expected that the conclusions of the study will be beneficial to standardize the behavior of managers and promote the implementation of antitrust laws.This article is divided into six parts:The first part discusses the meaning and types of administrative monopoly beneficiary undertakings.This article believes that the administrative monopoly beneficiary undertakings refers to the operator who participates in the administrative monopoly behavior decision-making or implementation,and has a relatively direct relationship with the administrative monopoly body,thereby intentionally or unintentionally obtaining monopoly profits or competitive advantages.According to the subjective status of the beneficiary undertakings,it can be divided into four types:cooperative beneficiary undertakings,one-sided cooperative beneficiary undertakings,forced beneficiary operations,and indirect related beneficiary undertakings.The second part analyzes the necessity of beneficiary undertakings to assume legal responsibility.The beneficiary undertakings is a key fulcrum for the administrative subject to abuse administrative power to intervene in market activities and damage the competition mechanism,which is the realistic basis for the necessity of its legal responsibility.The subjective state and interest motive of the beneficiary undertakings in the damage mechanism of administrative monopoly competition are the necessary conditions for it to assume legal responsibility.The third part elaborates the theoretical basis for administrative monopoly beneficiary undertakings to bear legal responsibility.This article summarizes and analyzes five academic views,including the sanctions theory of administrative and market entities,the deterrence theory from the perspective of law and economics,and the theory of violation of moral responsibility and so on.After this,this article believes that the theoretical basis for the administrative monopoly beneficiary undertakings to assume legal responsibility is to deter the operator from participating in the administrative monopoly,but also to compensate the infringed public interest and maintain the legal social order and social existence.The fourth part summarizes the status and problems of the legal liability of the beneficiary undertakings of administrative monopoly in my country.China's anti-administrative monopoly legislation has paid too much attention to"administrative power abuse leads to administrative monopoly",ignoring that administrative power can only ultimately harm market competition through beneficiary undertakings acting as market intermediaries,leading to that legal responsibility of administrative monopoly beneficiary undertakings in antitrust laws and related regulations is not clear.It is manifested in:First,in principle,the beneficiary undertakings implementing monopoly can be illegally identified and punished in accordance with the general economic monopoly rules,but the current legislation on the behavior of the beneficiary undertakings does not provide clear guidance on whether and how to consider the administrative monopoly factor;Second,the beneficiary undertakings participates in the administrative monopoly to capture unjustified interests,which doesn't constitute a monopolistic behavior,but there is no legal basis for the illegal identification and punishment of its behavior;Third,Article 32 of the Interim Regulations on Prohibition of Monopoly Agreements and Article 37 of the Interim Regulations on the Abuse of Dominance of Market Dominant Status are not clear about the criteria for "passive compliance with administrative orders",which may result in the punishable person not being punished or those who should not be punished are punished;Fourth,the current legislation does not specify the types of legal liability and the distinction between the various types of beneficiary undertakings.The fifth part studies the legislative experience of the legal liability of beneficial operators in antitrust laws of other countries and regions in the world.Countries with economies in transition represented by Russia and Ukraine do not stipulate the legal responsibilities of the beneficiary undertakings in the legal provisions related to administrative monopoly,but the legal liability for the general economic monopoly including civil liability,administrative liability,and criminal responsibility can be applied to the beneficiary undertakings.It is worth noting that Russian antitrust law prohibits agreements and synergies between administrative entities and operators to restrict competition.The antitrust laws of the developed countries represented by the United States and the European Union can,in principle,apply the legal liability of general economic monopolies to beneficiary undertakings.At the same time,in the United States;the "state behavior theory" established by the Supreme Court of the United States through jurisprudence clarifies the conditions for the beneficiary undertakings participating in the administrative monopoly to be exempted from antitrust laws;In the EU,where there are administrative monopolies,beneficiary undertakings can reduce their legal liability if they can prove that they have no room for "independent decision-making" in accordance with the principles of competition.In the sixth part,it puts forward suggestions to improve the legal responsibility of the administrative monopoly beneficiary undertakings.First of all,the"administrative monopoly" factor should be clarified as the consideration factor of the beneficiary undertakings' behavior rules.The existence of an administrative monopoly factor does not negate the independence of the beneficiary undertakings'behavior and does not affect the illegality of its behavior;the administrative monopoly factor should be considered as a factor in reducing or punishing the legal liability of the beneficiary undertakings.Secondly,clarify the prohibitive and punitive rules when the behavior of the beneficiary undertakings does not constitute a monopolistic behavior,which is to declare the situation where the behavior of the beneficiary undertakings does not constitute a monopoly behavior as an illegal act,and to establish a corresponding legal responsibility system for it.Third,the legal responsibility of the compulsory beneficiary undertakings to implement the monopoly can be determined according to the corresponding rules of the general economic monopoly,but it is necessary to clarify the standard of "passively abide by the administrative order" and clarify the way of identification of it in the process of identifying and implementing legal responsibility.Finally,clarify the legal liability forms and distinctions of various types of beneficiary undertakings.In order to prevent and deter the beneficiary undertakings from participating in the administrative monopoly,the administrative and civil responsibilities of the beneficiary undertakings should be specified.On this basis,it is necessary to clarify the specific method of undertaking the legal responsibility of the beneficiary undertakings,and distinguish the different types of beneficiary undertakings' legal lia bility.