| Article 46,paragraph 2 of Chinese "Anti-Monopoly Law" provides for a "leniency program",that is,anti-monopoly law enforcement agencies can give preferential treatment to monopoly enterprises that actively report monopoly issues and provide important evidence.In the past ten years since the leniency program was implemented,more than ten cases have been applied.However,by reviewing the anti-monopoly administrative penalty decisions,it can be seen that anti-monopoly law enforcement agencies not only use the "leniency program" in administrative penalties to reduce or exempt penalties of monopoly enterprises,but also apply the general provisions of the Administrative Penalty Law which is Article 27 to reduce or exempt penalties of some monopoly enterprises.Jurisprudentially speaking,the "Antitrust Law" and "Administrative Penalty Law" in the field of antitrust punishment belong to the relationship between "special law" and "general law".Since the application of the " leniency program " clause can achieve the effect of punishment reduction,why is there still a case in which the general provisions of the Administrative Punishment Law for reducing or exempting penalties are used as a basis for punishment? Is this legal and reasonable? How to distinguish and apply the two in anti-monopoly law enforcement practice in future has become the problem studied in this article.This article analyzes the penalties decisions of antitrust enforcement agencies in recent years,and analyzes the reasons for the antitrust enforcement agencies to mix the two types of regulations,and discusses the legality and rationality of this mixed use.Finally,based on the above analysis,it is concluded that the provisions of the antitrust law's leniency program should become the legal basis for preferential application in the punishment process of antitrust enforcement agencies.And after that,we establish the path of law application in the field of antitrust investigation.This article is divided into three parts: the statement of problem,the body and the conclusion.The body includes four parts.The first part is the case combing part.Through the full sample cases combing,this part finds that the situation where antitrust law enforcement agencies give preferential treatment to "monopoly enterprises" can be divided into two cases: the first case is the direct application of the "leniency program",that is,article 46(2)of the Anti-Monopoly Law and related administrative regulations to reduce or exempt penalties for the monopoly enterprises involved;the second case is the application of the "general provisions for deductions and exemptions",that is,article 27 of the "Administrative Penalty Law",individual monopoly enterprises that "actively cooperate with the agency and actively terminate illegal activities" or even "provide relevant evidence" will be exempted from punishment.The coexistence of these two punishment paths is a special phenomenon in China's anti-monopoly law enforcement field.The second part analyzes in depth the reasons why antitrust law enforcement agencies use these two types of regulations.One of the reasons for mixing the two types of regulations is the absence of procedural rules of the "leniency program" in our country,which not only leads to the lack of application for monopoly enterprises,but also imposes antitrust enforcement.Based on the path-dependent law enforcement paradigm,antitrust law enforcement agencies have a tendency to choose to apply the Administrative Penalty Law.The second reason is that antitrust law enforcement agencies have abuse of administrative discretion,this discretion includes discretion on "important evidence" and discretion on whether or not to ultimately grant leniency.When the antitrust enforcement agency determines that the relevant monopoly enterprise does not meet the "leniency program".However,when there is the performance of "actively cooperating with investigations,actively terminating illegal acts,and even providing evidence",it tends to apply the "Administrative Penalty Law" to reduce or exempt penalties of monopoly enterprises.This phenomenon seems to reflect a good image of leniency and strictness,but it actually results in law confusing.It is not conducive to the establishment of the authority of the law.The third part starts from three aspects to question the mixed use of the two types of antitrust enforcement agencies.Firstly,mixing the general provisions of the "leniency program" and the "Administrative Punishment Law" to reduce and exempt penalties makes the "leniency" mechanism established between the "leniency program" and the monopoly enterprises invalid,which is not conducive to antitrust enforcement agencies to efficiently investigate and deal with monopoly enterprises;Secondly,"cooperating with investigations and terminating illegal acts" is a legal obligation that administrative counterparts must fulfill,no matter from the perspective of the law,or from scholars' perspectives,court judgments,or even the administrative penalty decisions of administrative agencies themselves.Discretionary factors are inappropriate by law and reason,and are suspected of abuse of power.Finally,the "Antitrust Law" and "Administrative Punishment Law" are a relationship between special law and general law.For some people who meet the conditions of applying the "leniency program",monopoly enterprises' application of the Administrative Penalty Law to reduce or exempt penalties violates the applicable principles of general law and special law.The fourth part explores the choice of the path for the application of antitrust law in the future.Faced with the fact that China's antitrust enforcement personnel are still insufficient,in order to improve the efficiency of antitrust investigation and punishment under certain circumstances,Article 27 of the "Administrative Penalty Law" still has a certain scope for application.Specifically,in the process of applying the law,the following paths can be followed: firstly,those who only "cooperate with investigations and terminate illegal acts" should not apply the "leniency program" to reduce or exempt penalties;secondly,those who actively report and provide important evidence shall be applied the "leniency program" to exempt or reduce from punishment,and the standard of "important evidence" shall be lowered;thirdly,those who have "actively eliminated" illegal consequences or other meritorious deeds may apply Article 27 of the "Administrative Punishment Law" as appropriate to reduced penalties.In this way,the value of the "leniency program" can be balanced with the efficiency of antitrust enforcement agencies.Finally,China should seize the opportunity to amend the "Antitrust Law" and the establishment of the State Administration of Market Supervision,improve the "leniency program" regulations,and issue corresponding "leniency program" application guidelines as soon as possible to enhance legal certainty and limit the discretion of monopoly law enforcement agencies,that will encourage more companies to apply for leniency,improve the efficiency of investigation and punishment of monopoly enterprises,and maintain a fair and orderly market competition environment. |
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