legal regulation of administrative monopoly as viewed from chinese antimonopoly law

1、Vol. 2, No. 4 Journal of Politics and Law72Legal Regulation of Administrative Monopoly As Viewed from Chinese Antimonopoly Law Ling Wang Law school of Shando

2、ng University of Technology Zibo 255049, Shandong, China Abstract The administrative monopoly breaks the principle of justice, and has large harm to the society. The special chapter in Chinese Antimonopoly Law regulates

3、 the contents and corresponding legal responsibilities of administrative monopoly, but the law still has some deficiencies. The Chinese Antimonopoly Law should be perfected from increasing the operation property, confi

4、rming the comprehensive legal responsibilities, confirming the law enforcement agency of anti-administrative monopoly, expanding the range of legal regulation and establishing the judicial review system. Keywords: Chine

5、se Antimonopoly Law, Administrative monopoly, Regulation In china, the administrative monopoly mainly means the behaviors that administrative subjects harm the market competition and destroy socialism market economy ord

6、er 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 u

7、nfair competition and monopoly in special market, and it harms the benefits of most market subjects, and largely wastes effective resources, and blocks the establishment and perfection of the socialism market competiti

8、on mechanism. Therefore, it should seek solution and regulation methods from various approaches for the administrative monopoly. Only in this way, the obstacle of Chinese economic system reform and the development of m

9、arket 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. Regu

10、lation of administrative monopoly 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 regu

11、lation view are representative views. The system reform view thinks that the administrative monopoly is the product of system, and it can be completely solved by deepening the economic system reform and the political s

12、ystem 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, and it must be forbidde

13、n 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 Antimo

14、nopoly Law is the main power to regulate the administrative monopoly. Because Chinese economic and political system reform is a gradual process which needs quite long-term endeavors, and this transfer needs large patie

15、nts and willpowers, so the administrative monopoly has been a very hot potato at present, and it has seriously blocked the economic development of China with large social harms, and it even blocks the economic and poli

16、tical 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 t

17、o only 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

18、 the administrative monopoly roots in economic monopoly and has many characters and harms of economic monopoly, more and more legal scholars want to utilize Chinese Antimonopoly Law to regulate the administrative monop

19、oly. “ 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 according to the national situation, because the

20、 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.35

21、7)” . At August 1 of 2008, Chinese Antimonopoly Law became effective in people’ s expectations, and the fifth chapter specially regulates the content of administrative monopoly, and the articles from 32 to 37 respective

22、ly generalize the elimination of administrative power abuse and the behaviors of competition limitation, and completely regulate the concrete represent form of administrative monopoly, and article 51 regulates correspo

23、nding 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 indicated that the legal

24、regulation view had been adopted finally. The contents of Vol. 2, No. 4 Journal of Politics and Law74consciousness, and both the cognition and treatment resul

25、t 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 narrow The article 33 of Chinese Antimonopoly Law

26、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 a

27、dministrative power to carry out following conducts, 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

28、the service industry is enhanced increasingly, and if the object of the anti-administrative monopoly is only limited in the domain of goods trade, the domain which is bigger and occupies more proportion will be abandone

29、d 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 exclude

30、s 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 admi

31、nistrative monopoly behaviors in the domain of service industry is still blank in Chinese Antimonopoly Law. 2.5 Regulation measures for abstract administrative monopoly are deficient Though Chinese Antimonopoly Law has

32、prohibitive regulations about the behaviors of abstract administrative monopoly, but it regulates nothing about legal responsibility and relief ways. If the illegal behavior of abstract administration can not be redres

33、sed in time (including the mode of administrative lawsuit) in practice, it will always induce larger harm (Huang, 2001). Many administrative monopoly behaviors in practice are implemented by the mode of abstract admini

34、strative monopoly behavior, and even certain concrete administrative monopoly behavior is always done according to administrative rules, but these rules and byelaws must be examined and approved, recorded or agreed by

35、superior people’ s governments or charge authorities when they are constituted, and whey they are dissented, the judgment right is always in original authorities which will be hard to deny the rules and byelaws what the

36、y 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 defici

37、ent, so the illegal behaviors of administrative subject is hard to be redressed. 3. Perfection of administrative monopoly regulation in Chinese Antimonopoly LawAbove aspects about the legal regulation for the administra

38、tive monopoly in Chinese Antimonopoly Law all need to be perfected and simple opinions are offered as follows. 3.1 Using foreign mature experiences as references and increasing the operation feature of Chinese Antimonop

39、oly Law Law 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 enf

40、orce 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

41、 should be further confirmed. Therefore, the content of the chapter 5 in Chinese Antimonopoly Law can be regarded as the principled legal rules to regulate administrative monopoly, and the explanation of general princi

42、ples is a complex and hard task, just as when US modified the transverse merger directory in the Antimonopoly Law, it added the word of “ efficiency judgment” , and the American Competition Bureau used 13000 words to e

43、xplain 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 Antimonop

44、oly Law can be added, and the uniform law enforcement standards can be established to effectively regulate the administrative monopoly behaviors by law. 3.2 Establishing various administrative monopoly legal responsibil

45、ity systems The past laws in China only regulated administrative monopoly by administrative responsibility, but ignored the function of civil responsibility and criminal responsibility. To more effectively regulate admi

46、nistrative monopoly, the particularity of administrative monopoly should be considered fully, and constitute comprehensive legal responsibilities including administrative responsibility, civil responsibility and crimin

47、al responsibility according to the principle of legal responsibility, proper responsibility and own responsibility. When maintaining special competitors’benefits, the behavior of administrative monopoly harms other com

48、petitors’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 system of administrative

49、 compensation, but the range of administrative compensation is limited, and it doesn’ t include the administrative compensation. And to better protect relative parties’legal rights, Chinese Antimonopoly Law should spec

50、ially regulate that victims of administrative monopoly have rights to institute civil actions, and obtain corresponding civil damages. At the same time, the behavior of administrative monopoly has large social harm, an