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1、Legal Regulation of Administrative Monopoly As Viewed from Chinese Antimonopoly LawAbstractThe administrative monopoly breaks the principle of justice, and has large harm to the society. The special chapter in Chinese Antimonopoly Law regulates the contents and corresponding legal responsibilities o
2、f administrative monopoly, but the law still has some deficiencies. The Chinese Antimonopoly Law should be perfected from increasing the operation property, confirming the comprehensive legal responsibilities, confirming the law enforcement agency of anti-administrative monopoly, expanding the range
3、 of legal regulation and establishing the judicial review system.Keywords: Chinese Antimonopoly Law, Administrative monopoly, RegulationIn china, the administrative monopoly mainly means the behaviors that administrative subjects harm the market competition and destroy socialism market economy order
4、 by the administrative power. The administrative monopoly initially belongs to economic monopoly, and its harm is more than economic monopoly, and it destroys the principle of justice, and induces the occurrence of unfair competition and monopoly in special market, and it harms the benefits of most
5、market subjects, and largely wastes effective resources, and blocks the establishment and perfection of the socialism market competition mechanism. Therefore, it should seek solution and regulation methods from various approaches for the administrative monopoly. Only in this way, the obstacle of Chi
6、nese economic system reform and the development of market economy can be removed, which can promote the quick development of economy, enhance the living level of people, improve the total survival environment, and realize the harmony and stability of the society.1. Regulation of administrative monop
7、oly in Chinese Antimonopoly LawFor the regulation of administrative monopoly, there are many researches and discussions among Chinese scholars, and the system reform view and the legal regulation view are representative views. The system reform view thinks that the administrative monopoly is the pro
8、duct of system, and it can be completely solved by deepening the economic system reform and the political system reform, and the legal measure is hard to solve the problem of administrative monopoly. The central content of the legal regulation view is that the administrative monopoly is very harmful
9、, and it must be forbidden mainly by the laws. The legal regulation view is also can be divided into two factions, and one is to mainly use the administrative law to regulate the administrative monopoly, and the other thinks that Chinese Antimonopoly Law is the main power to regulate the administrat
10、ive monopoly.Because Chinese economic and political system reform is a gradual process which needs quite long-term endeavors, and this transfer needs large patient and willpower, so the administrative monopoly has been a very hot potato at present, and it has seriously blocked the economic developme
11、nt of China with large social harms, and it even blocks the economic and political system reforms which is being in China, so it must be forbidden as soon as possible, or else, the large destroying function on the development of Chinese economy will be hard to image. Therefore, it is too ideal to on
12、ly depend on the system reform to regulate the administrative monopoly, and the effect is not obvious. In the present national situation, law is the feasible measure to regulate the administrative monopoly. Because the administrative monopoly roots in economic monopoly and has many characters and ha
13、rms of economic monopoly, more and more legal scholars want to utilize Chinese Antimonopoly Law to regulate the administrative monopoly. “It is the characteristic of Chinese Antimonopoly Law to take the administrative monopoly as the control object of antimonopoly, and it seems a necessary selection
14、 according to the national situation, because the administrative monopoly forming in traditional planned economy system is impossible to be removed by administrative measure, and it can only be solved by the legal measure, i.e. the Antimonopoly Law (Zhang, 1993, P.357)”. At August 1 of 2008, Chinese
15、 Antimonopoly Law became effective in peoples expectations, and the fifth chapter specially regulates the content of administrative monopoly, and the articles from 32 to 37 respectively generalize the elimination of administrative power abuse and the behaviors of competition limitation, and complete
16、ly regulate the concrete represent form of administrative monopoly, and article 51 regulates corresponding legal responsibilities. Thus，the regulation of administrative monopoly is first regulated in law, and the legal approach is the main measure to govern the administrative monopoly, which indicat
17、ed that the legal regulation view had been adopted finally. The contents of administrative monopoly in the Antimonopoly Law embodies the advancement of Chinese legal theory study and legislation technology, and it showed the decision of Chinese legislators to standardize the enforcement of administr
18、ative power and stop the abuse of administrative power. Of course, law is only one most important measure to regulate the administrative monopoly, and the reasonable and effective reforms in polity and economy also have very important meanings for the regulation of administrative monopoly behaviors.
19、2. Deficiencies of administrative monopoly regulation in Chinese Antimonopoly LawRelative regulations about administrative monopoly in Chinese Antimonopoly Law are active and helpful exploration to regulate administrative monopoly behaviors by law, and corresponding legal regulations are deeply mean
20、ingful and influencing to eliminate the bad influences of administrative monopoly, promote the fair competition, establish normal market order, and guarantee the ordered development of market economy. However, whether relative corresponding systems or the articles in the chapter 5 still have some de
21、ficiencies, and the anti-administrative monopoly much still remains to be done.2.1 Regulations are too fundamental to operateThe articles in the chapter 5 of Chinese Antimonopoly Law are some principled articles lacking in operation, which make the judiciary and law enforcement agencies are difficul
22、t to distinguish. And many abstract concepts such as what extent can achieve administrative monopoly, and what is that the abuse of administrative power to block the free circulation of commodities can not be defined clearly in only five legal articles, so the catchwords of anti-administrative monop
23、oly appear incapable. At August 1 of 2008, the first day when Chinese Antimonopoly Law was implemented, Chinese State Administration of Quality Supervision, Inspection and Quarantine encountered the first case about Chinese Antimonopoly Law. However, in the expectation of ten thousands of people, th
24、is case came to an untimely end, and though the court adopted the article that the limitation of actions was over to evade this case, but it can be supposed that if the court can not evade it by relative reasons, what is the result? Was the behavior that Chinese State Administration of Quality Super
25、vision forced to push the electric supervision code business of Citic Guoan Information Technology Co., Ltd with its own shares in 69 kinds of product an administrative monopoly behavior? The result might reach the same goal by different routes. And relative regulations about the current antimonopol
26、y law endow law-officers too much discretion to make them to “go after profits and avoid disadvantages”.2.2 The regulations about the legal responsibility of administrative monopoly are deficientChinese Antimonopoly Law regulates the civil, administrative and criminal responsibilities assumed by man
27、agers who implement monopoly behaviors in detail, but for the legal responsibility of the behaviors of administrative monopoly, only the article 51 of Chinese Antimonopoly Law regulates that “If administrative power by government and organizations to which laws and regulations grant rights to admini
28、ster public issues abuse administrative power, to eliminate or restrict competition, shall be ordered by superior authorities to correct themselves; people in direct charge and people directly involved shall be imposed administrative punishment. The antimonopoly execution authorities shall supply su
29、ggestion to related superior authorities to handle according to law.” Many administrative responsibilities such as “shall be ordered by superior authorities to correct themselves; people in direct charge and people directly involved shall be imposed administrative punishment” form different legal re
30、sults of different subjects to implement monopoly behaviors, so people begin to suspect the justice of laws, which virtually helps the administrative subjects to implement administrative monopoly, and the deterrent force will be reduced largely. At the same time, though the responsibility of Chinese
31、 Antimonopoly Law is too lighter and becomes a mere formality, and the law is not obeyed and strictly enforced, so the administrative monopoly remains incessant after repeated prohibition.2.3 The jurisdiction of antimonopoly law enforcement institution is limitedThe definition about the anti-adminis
32、trative monopoly law enforcement agency in the fifty first article of Chinese Antimonopoly Law is still blurry, and on the one hand, the supervision procedures should be independently established to restrain laws by this law, and on the other hand, the law regulates that the administrative monopoly
33、should be dominated by superior authorities, and the article that “If administrative power by government and organizations to which laws and regulations grant rights to administer public issues abuse administrative power, to eliminate or restrict competition will be handled by another regulation, sh
34、all be applied to another regulation” has left large space for the rights of relative departments and supervision institutions, which has eliminated the jurisdiction of anti-administrative monopoly law enforcement agent to the administrative monopoly. At the same time, it is not reasonable to handle
35、 the behaviors of administrative monopoly by the superior authority of lawbreaker for the legal responsibilities. The superior authority is not a specific authority, because the authorities implementing administrative monopoly are different, and the law enforcement has be decomposed to various funct
36、ional authorities, which will easily induce repeat law enforcements or blank law enforcement. Furthermore, the superior authority is not the authority to specially dominate administrative monopoly, or the special judicial authority, and it just is common law enforcement authority (Wang, 2007). Staff
37、s in superior authority may not have strong antimonopoly consciousness, and both the cognition and treatment result all lack in authorities, and they also lack in the ability to teat the cases about administrative monopoly.2.4 The range of administrative monopoly regulation is too narrowThe article
38、33 of Chinese Antimonopoly Law limits the object of administrative monopoly in the domain of goods trade. “Administrative power by government and organizations to which laws and regulations grant rights to administer public issues shall not abuse administrative power to carry out following conducts,
39、 to hinder the free flow of the commodities between regions”. In fact, the character of the transfer of modern economic industry structure is that the proportion of the service industry is enhanced increasingly, and if the object of the anti-administrative monopoly is only limited in the domain of g
40、oods trade, the domain which is bigger and occupies more proportion will be abandoned out of the supervision of Chinese Antimonopoly Law. Though the article 34 forbids and excludes that exterior managers participate in local bid invitation and bidding activities, and the article 35 forbids and exclu
41、des that exterior managers invest or establish branches including the domain of service trade in local region, but there are many items in the service industry out of these two ranges, and the legal regulation about administrative monopoly behaviors in the domain of service industry is still blank i
42、n Chinese Antimonopoly Law.2.5 Regulation measures for abstract administrative monopoly are deficientThough Chinese Antimonopoly Law has prohibitive regulations about the behaviors of abstract administrative monopoly, but it regulates nothing about legal responsibility and relief ways. If the illega
43、l behavior of abstract administration can not be redressed in time in practice, it will always induce larger harm (Huang, 2001). Many administrative monopoly behaviors in practice are implemented by the mode of abstract administrative monopoly behavior, and even certain concrete administrative monop
44、oly behavior is always done according to administrative rules, but these rules must be examined and approved, recorded or agreed by superior peoples governments or charge authorities, and when they are dissented, the judgment right is always in original authorities which will be hard to deny the rul
45、es and byelaws what they constituted. In addition, most countries adopt the judicial review system to treat the abstract administrative behavior by the mode of inefficacy or nonexistence, but this system in Chinese Antimonopoly Law is deficient, so the illegal behaviors of administrative subject is
46、hard to be redressed.3. Perfection of administrative monopoly regulation in Chinese Antimonopoly LawAbove aspects about the legal regulation for the administrative monopoly in Chinese Antimonopoly Law all need to be perfected and simple opinions are offered as follows.3.1 Using foreign mature experi
47、ences as references and increasing the operation feature of Chinese Antimonopoly LawLaw enforcement should be executed according to laws, and that means the clear description of legal concepts is the premise to exactly enforce laws, and the specific description of legal rules is the base to enforce
48、laws strictly, but the problems about administrative monopoly in Chinese Antimonopoly are very complex, and some legal concepts have not been defined, and detailed legal standards and concrete legal responsibility should be further confirmed. Therefore, the content of the chapter 5 in Chinese Antimo
49、nopoly Law can be regarded as the principled legal rules to regulate administrative monopoly, and the explanation of general principles is a complex and hard task, just as when US modified the Antimonopoly Law, it added the word of “efficiency judgment”, and the American Competition Bureau used 1300
50、0 words to explain it. It is necessary to explain the criterion of general rules, and only to constitute suited rules as soon as possibly, and explain the principled articles in detail, the operation character of Chinese Antimonopoly Law can be added, and the uniform law enforcement standards can be
51、 established to effectively regulate the administrative monopoly behaviors by law.3.2 Establishing various administrative monopoly legal responsibility systemsThe past laws in China only regulated administrative monopoly by administrative responsibility, but ignored the function of civil responsibil
52、ity and criminal responsibility. To more effectively regulate administrative monopoly, the particularity of administrative monopoly should be considered fully, and constitute comprehensive legal responsibilities including administrative responsibility, civil responsibility and criminal responsibilit
53、y. When maintaining special competitors benefits, the behavior of administrative monopoly harms other competitors competition right at the same time, and it belongs to a kind of tort, and it should assume corresponding civil responsibility, and though the administrative responsibility includes the s
54、ystem of administrative compensation, but the range of administrative compensation is limited. And to better protect relative parties legal rights, Chinese Antimonopoly Law should specially regulate that victims of administrative monopoly have rights to institute civil actions, and obtain correspond
55、ing civil damages. At the same time, the behavior of administrative monopoly has large social harm, and it should be adjusted by the criminal law when it seriously harms the society, and furthermore, the social harm extent achieved by administrative monopoly is far bigger than some economic crimes a
56、nd occupational crimes regulated in current criminal laws, so the measure of criminal punishment is necessary to be adopted.3.3 Confirming independent antimonopoly law enforcement institutions and perfect the law enforcement systemThe legal construction in China is to solve practical problems in the
57、 final analysis, and the setup of antimonopoly law enforcement institution is not exceptional. The antimonopoly law enforcement institution should be highly independent. To keep the independent is the life line of antimonopoly law enforcement institution, and the meaning of antimonopoly law, that is
58、 also the successful experience to effectively execute antimonopoly laws in most countries. And antimonopoly law enforcement institution must have high specialty character, and the antimonopoly law enforcement is not simple market management, and it comes down to the contents about economy, law and
59、management, so it is a complex project. Professional organization system is the important factor to guarantee the effective operation of law enforcement institution.Independent and professional antimonopoly institution should be endowed by extensive administrative power, quasi-legislative power and
60、quasi-judicial power, and that is the need to regulate administrative monopoly in China and the requirement to treat the development of international antimonopoly.3.4 Combining the generalization mode with the listing mode to specially limit the range of administrative monopolyBecause Chinese Antimo
61、nopoly Law defines the range of administrative monopoly by the listing mode, and it is mainly limited in the domain of goods trade, which induces that the regulation range of administrative monopoly in China is too narrow and lacks in corresponding flexibility. Using foreign relative experiences as
62、references, China should adopt the mode combining the generalization mode with the listing mode to define the range of administrative monopoly.On the one hand, the main representative form of administrative monopoly should be listed specially, and the concrete regulations to regulate administrative
63、monopoly behaviors in the domain of servicing industry should be added. And according to these rules, the antimonopoly law enforcement institutions should quickly judge representative administrative monopoly behaviors, and predict its legal result and increase the efficiency. On the other hand, acco
64、rding to relative authority data, the range of the industry about the national economy and the peoples livelihood should be specially defined, and the monopoly of these industries should be protected by laws, and the protective range and degree should also be defined, and for the behavior to illegal
65、ly expand the monopoly range, corresponding punishment measures should be regulated.Through above analysis, the legal regulation of administrative monopoly behaviors in China just starts, and the relative rules about the administrative monopoly behaviors in Chinese Antimonopoly Law needs to be furth
66、er perfected and crystallized, and the legal responsibilities about the administrative monopoly behaviors and the jurisdiction of law enforcement institution need to be further confirmed, and the regulation range of administration monopoly needs to be further expanded, and corresponding juridical relief approaches need to be gradually established. At the same time , the system reforms in the economic and political domain
法學(xué)專業(yè) 外文翻譯 外文文獻(xiàn) 英文文獻(xiàn) 從中國(guó)反壟斷立法看行政壟斷的法律規(guī)制
