Research On Anti-administrative Monopoly Public Interest Litigation System

The relationship between the government and the market has always been the core proposition of economic law,and administrative monopoly is the direct expression of the imbalance between the two relations.Up to now,anti-administrative monopoly is still the focus of the anti-monopoly Law of the People’s Republic of China.Of nearly13 years of public administration monopoly case data analysis,although far less than economic monopoly in terms of the number of cases,but also clearly presents the geographical span,involved in industry fields widely,depth of damage,and often in abstract administrative monopoly behavior etc,it was destroyed the market competition order,also seriously damage consumer welfare.Facing such a severe situation,China’s current anti-monopoly implementation mechanism can not effectively regulate the administrative monopoly phenomenon.With the emergence of a new pattern of interaction and complementarity between the state and society,a number of social groups,non-governmental organizations and non-governmental organizations have emerged to represent the interests of groups.At the same time,the public’s vision was no longer limited to personal interests,but began to expand to the public interest.In view of administrative monopoly,individuals and social organizations have put forward a lot of public welfare appeals.Restricted by the interests,these appeals have failed to enter the judicial platform and get effective relief,which is far from the public welfare attribute that anti-monopoly litigation wants to highlight.In order to strengthen and implement the public welfare of anti-monopoly litigation,it is necessary to explore the application of public interest litigation theory in anti-administrative monopoly,that is,anti-monopoly administrative public interest litigation system.In the process of exploring the construction of this system,there are still many obstacles: on the one hand,China’s administrative monopoly regulation system has been guided by solidified administrative thinking for a long time,which makes the relevant entities and procedural rules have a strong color of administrative law.At the same time,the connotation of administrative monopoly and public interest in the Anti-monopoly Law is not clear,the fuzziness of the two greatly affects the implementation efficiency of the Anti-monopoly Law.On the other hand,the scope of judicial protection of public interests is still too narrow to meet the public’s higher expectations on the maintenance of public interests,and the construction of a supporting system is a major theoretical and practical issue,which requires in-depth consideration.In the construction of anti-monopoly administrative public interest litigation system,we need to theoretically get out of the blind copy of the traditional litigation system misunderstanding,clarify its theoretical basis.The anti-monopoly administrative public interest litigation system should be established directly through national legislation,and the provisions on administrative monopoly in the Anti-monopoly Law should be improved while the administrative Procedure Law makes the principle provisions.The scope of cases should clearly list the administrative monopoly made by specific administrative acts and improve it by selecting typical cases.In addition to procuratorial organs,the scope of the subject qualification of prosecution should also include anti-monopoly law enforcement agencies,social organizations and individuals;The distribution of burden of proof should be differentiated between procuratorial organs and other public interest litigants,applying the principle of "who advocates who provides proof" and "inversion of burden of proof".In the application of law,the status of reference application of rules should be abolished;In terms of incentive mechanism,it is necessary to reconstruct the litigation cost allocation rules and expand the institutional space for social organizations to participate in litigation.