法学专业 外文翻译 外文文献 英文文献 从中国反垄断立法看行政垄断的法律规制

Legal Regulation of Administrative Monopoly As Viewed from

Chinese Antimonopoly Law

Ling Wang

Law school of Shandong 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 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, confirming 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: Chinese 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 order 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 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 Chinese 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 monopoly in Chinese Antimonopoly Law

For 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 product 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, 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 administrative 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 development 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 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 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 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 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 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 respectively 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 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 indicated 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 administrative 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.

2. Deficiencies of administrative monopoly regulation in Chinese Antimonopoly Law

Relative 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 meaningful 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 deficiencies, and the anti-administrative monopoly much still remains to be done.

2.1 Regulations are too fundamental to operate

The 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 difficult 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 monopoly 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, this 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 Supervision 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 antimonopoly 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 deficient

Chinese Antimonopoly Law regulates the civil, administrative and criminal responsibilities assumed by managers 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 administer 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 suggestion 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 cha rge and people directly involved shall be imposed administrative punishment” form different legal results 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 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 limited

The definition about the anti-administrative 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 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, shall 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 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 functional 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). Staffs 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 narrow

The article 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, 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 goods 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 excludes 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 in Chinese Antimonopoly Law.

2.5 Regulation measures for abstract administrative monopoly are deficient

Though 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 illegal 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 monopoly behavior is always done according to administrative rules, but these rules must be examined and approved, recorded or agreed by superior people’s governments or charge authorities, and when they are dissented, the judgment right is always in original authorities which will be hard to deny the rules 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 hard to be redressed.

3. Perfection of administrative monopoly regulation in Chinese Antimonopoly Law

Above 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 experiences as references and increasing the operation feature of Chinese Antimonopoly 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 enforce 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 Antimonopoly 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 13000 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 established to effectively regulate the administrative monopoly behaviors by law.

3.2 Establishing various administrative monopoly legal responsibility 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 administrative monopoly, the particularity of administrative monopoly should be considered fully, and constitute comprehensive legal responsibilities including administrative responsibility, civil responsibility and criminal responsibility. 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 system 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 corresponding 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 and 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 system

The legal construction in China is to solve practical problems in the 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 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 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 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 monopoly

Because Chinese Antimonopoly 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 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 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, according to relative authority data, the range of the industry about the national economy and the people’s livelihood should be specially defined, and the monopoly of these indu stries should be protected by laws, and the protective range and degree should also be defined, and for the behavior to illegally 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 further 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 need to be further deepened, and the continual perfection of system reform can essentially reduce and stop the happening of administrative monopoly behaviors, and both the system reform and the legal regulation need to be strengthened, which is the essential way to solve the problem of administrative monopoly.

从中国反垄断立法看行政垄断的法律规制

Ling Wang

山东科技大学法学院

摘要：

行政垄断打破了公正原则，并且具有较大的社会危害性。中国反垄断立法中有专门的章节对行政垄断的内容及其相应的法律责任作了规定，但是仍然有一些不足之处。中国的反垄断立法应当通过增加可操作性，规定更加全面的法律责任，确定实施反行政垄断的机关，扩大法律规定的范围，建立司法审查制度等途径进行完善。

关键词：中国反垄断法，行政垄断，法律规制

在中国，行政垄断主要是指行政主体利用其行政权危害市场竞争、破坏社会主义市场经济秩序的行为。行政垄断最初属于经济垄断，它有着比经济垄断更大的危害性，它不仅破坏了正义原则，诱导了不公平竞争和特殊市场的垄断，损害了多数市场主体的利益，造成了极大的资源浪费，还阻碍了社会主义市场竞争机制的建立和完善。因此，应当通过各种途径来寻求调节与规制行政性垄断的方法。只有这样，才能消除我国经济体制改革以及市场经济发展的障碍，从而促进经济的快速发展，提高人民的生活水平，改善总体生存环境，实现社会的和谐与稳定。

1、中国反垄断法中关于行政垄断的规定

对于如何规制行政垄断行为，中国的学者们进行了许多研究与讨论，其中最具代表性的观点是行政体制改革说和法律规制说。行政体制改革说认为，行政垄断是现行行政体制的产物，要彻底解决行政垄断的问题，必须依靠经济体制改革和政治体制改革的不断深化，而单纯依靠法律措施是难以解决行政垄断问题的。法律规制说的核心内容认为，行政垄断有极大的危害性，而法律才是禁止行政垄断并阻却其危害性的主要手段。法律规制说内部根据观点的不同可以分为两派，其中一派认为，行政垄断行为主要是依靠行政法来规制的，另一派则认为，行政垄断行为主要是依靠中国反垄断法来规制的。

由于中国的经济体制和政治体制改革是一个需要相当长期努力的渐进的过程，并且这种改革需要极大的耐心与毅力，因此行政垄断问题已经成为时下的一个“烫手山芋”。行政垄断带来的极大的社会危害性不仅严重阻碍了中国经济的发展，甚至严重阻碍了中国正在进行的经济体制和政治体制改革。因此，必须尽快采取措施禁止行政垄断行为，否则将会对中国的经济发展造成难以想象的巨大的破坏作用。而在当前的国情下，法律才是规制行政垄断行为的可行性措施，仅仅借助体制改革来规制行政垄断行为的想法是

过于理想化的。由于行政垄断根植于经济垄断，具备许多经济垄断的特点与危害，因此越来越多法学界的学者们希望利用中国反垄断法来规制行政垄断行为。“将行政垄断行为作为反垄断法的调控对象是我国反垄断法的特点，而且在当前的国家形势下这似乎是一个必要的选择。因为在传统的计划经济体制之下形成的行政垄断是无法以行政管理措施消除的，它只能依靠法律手段即反垄断法来解决（张，1993，P.357）”。

2008年8月1日，《中华人民共和国反垄断法》在大家的期待下生效，该法不仅以第五章专章规定了行政垄断的问题，而且在第32条至第37条中列举了滥用行政权力排除、限制竞争的行为，并且对行政垄断行为的具体表现形式做出了全面明确的规定，另外在第51条中规定了相应的法律责任。因此，法律措施是管理和规制行政垄断行为的首要的以及最主要的措施。由此可见，在立法上最终得以被采纳的观点是“法律规定说”。中国反垄断法中关于行政垄断的内容不仅充分体现了中国法学理论研究的进步和立法

技术的提高，也显示了中国的立法者在规范行政权力的实施和禁止行政权力的滥用方面的决心。当然，法律只是规范行政垄断行为的一个最主要的措施，除此之外，合理而有效的政治和经济体制改革对行政垄断行为的规制也有很重要的意义。

2、中国反垄断法中有关行政垄断之规定的缺陷

中国反垄断法中与行政垄断相关的法律规定是以法律手段规范行政垄断行为的积

极尝试和有益探索，与此相应的法律法规对于消除行政垄断行为的不良影响，促进公平竞争，建立正常的市场秩序，以及保障市场经济的有序发展等有着积极的意义和影响。然而，不论是相关法律规定的结构体系还是该法第五章中相关的法律条文本身，都还存在着许多缺陷，因此反垄断法尚有待完善。

2.1规定过于原则化，缺乏可操作性

中国反垄断法第五章中的规定过于原则化，缺乏可操作性，使司法、执法机构难以准确适用。而且许多抽象的概念是无法仅以5条法律条文就能明确的，例如何种程度的行为能够称得上“行政垄断”以及何种行为可以称作“滥用行政权力阻碍商品的自由流通”等，这使得反垄断法标榜的口号显得空洞无力。2008年8月1日——《中华人民共和国反垄断法》实施的第一天，中国国家质量监督检验检疫总局遭遇了中国《反垄断法》第一案。然而，在成千上万人的期待下，这个案件却匆匆结案了。虽然法院援用诉讼时效条款避开了这个案件，然而我们可以想象如果法院没有能够援用相关规定回避该案的审理，那么这个案子的结果会是怎样的呢？中国国家质量监督检验检疫总局强制推广其持股的中信国检信息技术有限公司在69种产品上的网络电子监管业务的行为是否应认定为一种行政垄断行为呢？结果也许会殊途同归。另外，现行反垄断法中的许多相关规定赋予了司法工作人员过多的自由裁量权，以至于他们可以“趋利避害”。

2.2对行政垄断的法律责任方面的规定存在缺陷

中国反垄断法对经营者实施垄断行为应当承担的民事、行政、刑事责任作了详细的规定，但是对于行政垄断行为的法律责任，却只在第五十一条中规定“行政机关和法律、法规授权的具有管理公共事务职能的组织滥用行政权力，实施排除、限制竞争行为的，由上级机关责令改正；对直接负责的主管人员和其他直接责任人员依法给予处分。反垄断执法机构可以向有关上级机关提出依法处理的建议。”一些诸如“由上级机关责令改正”以及“对直接负责的主管人员和其他直接责任人员依法给予处分”等关于行政责任的规定，使得反垄断法对不同主体实施的垄断行为规定了不同的法律后果。这实际上帮助了行政主体行政垄断行为的实施，并且极大地削弱了反垄断法的威慑力，以致于人们开始怀疑法律的公平与公正。同时，由于中国反垄断法中规定的法律责任过轻，且流于形式，而且该法并没有得到严格的遵守和执行，因此行政垄断行为仍然屡禁不止。

2.3反垄断执法机构的管辖权有限

首先，中国反垄断法第51条中关于反垄断执法机构的定义过于模糊。另外，一方面，应当在反垄断法中设立独立的监督程序来约束该法的实施；另一方面，法律规定行政垄断行为应当受上级机关调控监管，“法律、行政法规对行政机关和法律、法规授权的具有管理公共事务职能的组织滥用行政权力实施排除、限制竞争行为的处理另有规定的，依照其规定”这一条款为相关部门及其上级监管部门的权利留下了较大的空间，以致排除了反行政垄断执法机关对行政垄断行为的管辖权。再者，由应当承担法律责任的违法者的上级机关来处理其下级机关的行政垄断行为也是不合理的。上级机关并非一个特定的权威，因为各个机关实施的行政垄断是不同的，并且行政机关被划分为了各个不同的职能部门，这就很容易导致重复执法或执法空白。再者，上级机关既不是专门调控行政垄断的机关，也不是专门的司法机关，它只是常见的执法机关而已（王建民，2007年）。上级机关的工作人员可能并不具备强烈的反垄断意识，其做出的认定和处理结果往往欠缺权威性，并且行政机关是缺乏处理行政垄断案件的能力的。

2.4行政垄断法调整的范围过窄

中国反垄断法第33条将行政垄断的客体限定在商品交易这个特定的范围内。“行政机关和法律、法规授权的具有管理公共事务职能的组织不得滥用行政权力，实施下列行为，妨碍商品在地区之间的自由流通”。事实上，现代经济产业结构转变的特征是服务行业所占的比重日益上升，因此如果将反行政垄断的客体仅仅局限在商品交易领域内的话，那么一个更大更广阔的领域将被排除在中国反垄断法的监督体系之外。尽管第34条对滥用行政权力“排斥或者限制外地经营者参加本地的招标投标活动”做出了规定，并且第35条对滥用行政权力“排斥或者限制外地经营者在本地投资或者设立分支机构”