Anti -monopoly

◎ Text "Fighter" magazine all media reporter Li Liao

Antitrittering

On August 1, 2008, the Chinese Anti -Monopoly Law was officially implemented. Over the past 14 years, my country has been based on national conditions and has continuously improved the antitrust mechanism based on the absorption of antitrust experience in developed countries. At the same time, judicial and law enforcement parallel is re -shaped from the perspective of prevention and stopping to reshape free and fair market order.

In recent years, the country has continued to strike monopoly. Especially in 2021, which is known as China's "antitrust year", in order to create a fair, efficient and orderly market competitive environment, the State Administration of Market Supervision concluded 727 cases of concentrated cases, of which 1 and additional restrictions are prohibited and restricted restrictions are prohibited. 4 conditions for approval, and 107 public penalties have not been declared in accordance with the law. In November of the same year, the National Anti -Monopoly Bureau was officially listed in the State Administration of Market Supervision and Management. A series of actions show that the era of disorderly expansion of capital has become the past.

In the context of strengthening antitrust law enforcement and building a national unified market, my country has also accelerated the process of antitrust legislation. From June 21st to 24th, 2022, the 35th meeting of the 13th National People's Congress Standing Committee was held to conduct a second review of the Anti -Monopoly Law (amended draft). In the future, a more open, fair and orderly economic market environment is coming.

In 2021, the antitrust supervision was punched, and a total of 176 monopoly cases were investigated and punished, with a penalty of 23.586 billion yuan. Several major Internet giants have been punished by antitrust and refreshing China's antitrust administrative penalty record.

▲ Information picture

Under the new development environment, the state emphasizes the equality and development of supervision and development, clarify the rules, draws out of the bottom line, and sets up "traffic lights" to put forward higher requirements for the specialization and refinement of antitrust supervision.

Monopoly is the public enemy of the market economy

Monopoly can bring huge damage to a healthy competitive mechanism and continuous innovation momentum, and is thus considered to be a public enemy of the market economy. After the formation of monopoly, monopoly enterprises will use their own advantages to control resources, control the production and sales chain, establish industry barriers, eliminate restrictions on free competition, and cause the strong situation of strong and weak people.

Founded in 1870, the US Standard Petroleum Corporation merged more than 40 manufacturers for only 20 years, monopolizing 95%of the United States' refining capacity, 90%of oil transmission capacity, and 25%of crude oil production. This means that the fuel and chemical raw materials required by cars, trains, power plants and chemical plants basically comes from the company to make it enough to dominate the survival of any downstream enterprise, which seriously affects market competition. In 1911, Standard Petroleum Corporation established the Torlas organization's behavior as a monopoly, and the standard oil company was eventually split into 34 regional companies.

Other companies have colluded with each other, co -pricing, and manipulating the market. They have obtained high profits through the monopoly of prices, disrupting normal production and operation order, and damaging the legitimate rights and interests of consumers or other operators.

In July 2018, 10 concrete manufacturers in Yan'an City, Shaanxi Province jointly raised concrete sales prices on the grounds of rising raw materials. Moreover, some downstream construction companies that do not accept price increases stop supply. One year later, the Shaanxi Provincial Anti -Monopoly Law Enforcement Agency ordered these 10 concrete companies to stop illegal acts and fined nearly 5 million yuan.

Not only large enterprises, some small enterprises may also become the object of antitrust supervision. In the Shanghai Foodist case, the Shanghai Market Supervision and Administration Bureau determined that the foodist has a market dominance in the "online catering and beverage delivery platform service market that provides English services" and implemented the abuse market dominance of a limited transaction. Essence

For a long time, competition and innovation complement each other. When the two form a good interaction, the economy can obtain the basic conditions of high -speed development. "To maintain the existing market position and order, monopoly enterprises will inevitably hinder other companies' innovation. Even if they do not actively hinders, they will not be able to enter the market because they have a large market share, so that companies that want to innovate and have innovative results cannot enter the venue." On June 5th, Faye Wong, a lawyer of Beijing Kyoto Law Firm, told the reporter of the "Legal" that because it was difficult to form a competitive situation, the monopoly enterprise itself would also lose its innovation driving force and indirectly become a monopoly victim.

For consumers, in a fully competitive environment, high -quality products and good services can be obtained through price comparison. "But in the monopoly environment, consumers did not choose, and the company had no room for optimization. Over time, monopolized enterprises binding sales, price discrimination, and rejection of transactions may appear frequently, harm consumers' rights and society Public interest, "Faye Wong said.

In the face of a complex economic environment, antitrust can promote competition, maintain market vitality, and achieve high -quality development; it can adapt to self -reform and update of the times, helping to highlight China's attitude in international competition.

Looking at the international, the environmental changes are complicated and profound, new contradictions and new challenges are endless. The new international economic and trade rules highlight the characteristics of all -round coverage, diversified areas, high -quality and high standards. Property protection, competition policies, environmental protection, labor and other content.

"In the past, my country's antitrust policies and regulations were more suitable for domestic rule of law." On June 5, Qi Huan, a professor at the School of International Law of the University of China, told reporters, "With the improvement of China's international competitiveness, external pressures have forced us to speed up. Promote the legislation of important areas of the rule of law from foreign countries, and accelerate the construction of the legal system applicable outside the country, including strengthening the strengthening of antitrust and the adjustment of competitive policies. "Qi Huan believes that for China at this stage, the establishment of a fair and competitive market environment It is more important than ever: "Strengthening antitrust and in -depth promotion of fair competition policies is the inherent requirements of improving the socialist market economy system. Only by promoting the fairness and opening up of the competition system can we build a dual -cycle pattern and allow the socialist market with Chinese characteristics Economy and international are better in line. "The antitrust system is constantly improving

my country's competitive law legislation adopts the model of antitrust law and anti -unfair competition law, which respectively, the binary legislation model. On August 1, 2008, the "Economic Constitution", known as the "Economic Constitution", was officially implemented. Its legislative purpose was more clear and easy to achieve, making law enforcement work more operable. Essence

However, over the past 14 years, the anti -monopoly law is still relatively extensive compared with the market structure and scientific and technological level composition of my country's current economic level and the level of scientific and technological level. "In recent years, my country's policy documents, regulations, and guidelines for antitrust has been constantly promoted, and to a certain extent, it provides more refined guidance for the operating activities of the operator, reflecting the concern and response of antitrust work on practical issues." Faye Wong is Faye Wong. Say.

In 2019 and 2020, the "Interim Regulations on the Dispensing of Market Domination Status", "Interim Provisions on the Prohibition of Monopoly Agreement", and "Antitrust Guide to Intellectual Property Rights" were implemented one after another. At the same time "Interim Provisions on Concentrated Censors".

Combined with his own career experience, Faye Wong believes that the "Several Issues on Application Law on Application of Civil Dispute Cases caused by monopoly behaviors" issued by the Supreme People's Court in 2012 is the most "thirsty solution". For personnel, it is a legal document with a high frequency: "It specifies the basic framework of my country's antitrust civil lawsuit, and the people's courts have played an important role in guiding the people's courts to properly apply antitrust laws, fair and efficiently trial monopoly civil dispute cases in accordance with the law." The specified revised version of 2020 is still based on the original. It expanded the right to complaints from illegal organizations, and at the same time, it was adjusted with the time effect of the three -year lawsuit of the Civil Procedure Law, and responded in response to the practical needs in a timely manner.

In order to further improve the legal system of fair competition, in 2021, my country accelerated the revision of the antitrust law, promoted the formulation of the "Opinions on Strengthening the Implementation of Anti -Monopoly and Promoting the Implementation of Fair Competition Policy", further improved the framework of fair competition policy; "Antitrust Guide in the Field" and "Guidelines for Anti -Monopoly Compliance of Enterprises", revised and introduced the "Implementation Rules for the Fair Competition Examination System" to further improve the rules of the system, and improve the expected and transparentness of fair competition policies and antitrust legal systems.

In the same year, the General Office of the State Council issued the "Key Points of Government Affairs in 2021", which clearly proposed to strengthen the disclosure of antitrust and anti -unfair competition law enforcement information. On June 5th, Shida, a lawyer of the Hankun Law Firm from Beijing Hanyu Law Firm, told reporters that because antitrust cases are usually more complicated, it involves analysis, evaluation and guidance of market behavior, and the regulatory standards of law enforcement agencies are difficult to fully through the form of rules to towards the form of rules towards the form of rules. In many cases, in many cases, cases need to be fully presented. The disclosure of law enforcement information is conducive to strengthening the public's predictability of antitrust law enforcement. While improving the level of social law enforcement, it avoids the cold cicada effect. Thus affecting the phenomenon of economic development) and policy goals that guarantee equal development and regulation.

In 2021, one of the "highlights" of antitrust was the introduction of the "Anti -Monopoly Guide to the Platform Economic Field", which established rules for the fair competition of the platform economy and drawn a bottom line. Shida said that for the first time, the guide clarified that "the concentration of operators involved in the agreement control structure belongs to the scope of concentrated antitrust review of operators." He said: "A large number of platform enterprises in my country have adopted an agreement to control the architecture, and previous law enforcement agencies have not conducted a normalized review of the centralized behavior of operators implemented by such enterprises. The introduction of the guide as a clear policy signal promotes a large number of platform companies' historical transactions. "

It is worth mentioning that on November 18, 2021, the National Anti -Monopoly Bureau was officially established. In 2018, the reform of the State Council's institutions will be originally undertaken by the Anti -Monopoly Laws of the State Administration of Market Supervision by the Ministry of Commerce, the National Development and Reform Commission, and the State Administration for Industry and Commerce. Three years later, the National Anti -Monopoly Bureau was established, which further strengthened the independence, authority and professionalism of my country's antitrust law enforcement.

"In the past one or two years, the government's propaganda of the antitrust law has achieved obvious results. We found in the process of receiving the case that both state -owned enterprises or private enterprises have significantly improved the awareness of antitrust and compliance." Shida said.

Anti -monopoly needs to continue to strengthen

The 14 -year antitrust law has played an important role in maintaining fair competition, improving economic operation efficiency, maintaining consumer interests and social public interests, and promoting high -quality economic development. The needs of my country must improve this law. On October 23, 2021, the Standing Committee of the National People's Congress completed the first review of the Antitrust Law (revised draft) and publicly solicited opinions from the society. From June 21st to 24th this year, the 35th meeting of the Standing Committee of the 13th National People's Congress conducted a second review of the Anti -Monopoly Law (amended draft).

From the perspective of law enforcement, strengthening the digital economy antitrust is the focus of my country's current antitrust law enforcement. Amended the draft of the digital economy from a micro perspective. "The current anti -monopoly law also has the problem of relatively lagging legislation in practice." Faye Wong said, "The draft amendment has a clear regulation on the issue of concentration in recent years. Excluding and restricting competition with algorithms, technology, capital advantages, and platform rules, as well as setting obstacles such as data and algorithms, technology and platform rules, and unreasonable restrictions on other operators, these are all acts of abuse of market dominance. "

At the same time, amending the civil liability stipulated in the current law, the revision of the civil liability stipulated in the current law introduced the anti -monopoly civil public interest litigation system. It is mentioned: "If an operator implements monopoly behaviors and infringes the public interests of social public interests, the People's Procuratorate can file a civil public interest lawsuit to the people's court in accordance with the law." Faye Wong believes that this is one of the highlights of the draft amendment. "In determining the main issue of litigation of civil public interest litigation, my country can learn from external legislative experience, such as Germany in the" Restrictions Restricted Competition Law "that except for the victims that have the right to file a complaint of damages, they have legal ability and related interests Industry associations and social groups can represent the victims involved in the case to file a complaint of damage compensation to the offenders. From the perspective of maintaining a healthy market order, the main scope of the civil public interest lawsuit should be appropriately expanded. "

The revision draft has greatly increased the maximum amount of fines of the illegal implementation of the operator's concentration, which stipulates that if it is reached and implemented a monopoly agreement, it shall be fined by more than one percent percent of the previous year. If a fine of less than 5 million yuan, and the monopoly agreement reached by the implementation, a fine of less than 3 million yuan. At the same time, the draft has increased personal liability clauses, and those who have personal responsibilities to reach a monopoly agreement may be fined less than one million yuan.

Shida stated that the United States has reached an obvious monopoly agreement such as two or more operators with a competitive relationship that reaches exclusion, restricting competition, or other collaborative behaviors such as two or more competitors. Behavior, stipulates that criminal liability should be attached and has high deterrent. "Although my country's antitrust law also stipulates the upper limit of the penalty of the monopoly agreement behavior is 10%of the previous year's turnover, in the actual implementation process, due to the large space for free discretion in the turnover of the turnover, and the cross -regional linkage mechanism of local law enforcement agencies It is not mature, and the deterrence of law enforcement is slightly insufficient. "He believes that if you want to solve such problems, on the one hand, it will introduce the rules for the determination of anti -monopoly fines as soon as possible.

"From the perspective of public cases, in some traditional and local industries, it is easy to reach a joint price increase, joint production restriction and production suspension." Shida said that this type of horizontal monopoly agreement is in the current law. It is clearly stipulated as a monopoly behavior, and it is also the most serious category of monopoly behavior. It obviously has the effect of excluding restrictions on competition. It requires local antitrust law enforcement agencies to strengthen law enforcement and frequency, and solve it faster and better.

Anti -monopoly cases involve precise analysis and complexity collection. They are a category with high complexity in administrative law enforcement and civil lawsuits. A large amount of resource investment and different professionals such as economy, law and even technology are closely cooperated. According to Shida's understanding, some jurisdictions will be equipped with a special economist team to handle the case. "At present, my country's antitrust law enforcement teams still have room for improvement in law enforcement forces and professional division of work. The investment in resources will help the anti -monopoly work better. "

In this regard, Qi Huan said that competitive law enforcement agencies that match the basic status of the competitive policy should be established to achieve normalization of law enforcement and promote the implementation of competitive policies in multiple levels.

Editing ｜ Cui Xiaolin

Edit ｜ Bai Kui

School pair ｜ Zhang Bo Zhang Xuehui

This article is published in the "Legal person" magazine in June 2022 The total 220 cover story column

- END -