The Study On Exemption System Of Anti-monopoly Law

The exemption system is one of the basic systems of anti-monopoly law. The exemption system has special significance in harmonizing the relationship between monopoly and competition. The main purpose of anti-monopoly law is to prohibit and limit monopoly and to protect free competition. The monopoly regulated by anti-monopoly law has two characteristics. On the one hand, monopoly can destroy economy largely. On the other hand, monopoly can bring economic efficiency on scales, thus promote technology creation, the monopoly of some special trades and areas can facilitate the whole development of national economy, protect public interest and save product cost. As a result, almost every anti-monopoly law has the exemption system. On 30th, August, 2007, The 29th Session of the Tenth National People's Congress passed"Anti-monopoly law of PRC". At this moment, studying the related issues of the exemption system and Anti-monopoly law has great theory value and realism sense.This paper including four parts, has made a thorough discuss on the exemption system of Anti-monopoly law.The first part is the basal theory of the exemption system of Anti-monopoly law. First of all, starting with the intension of the exemption system, expound the characteristics which contained universalism, variability and relativity. Mainly has carried on the theory foundation of the anti-monopoly law exemption system from the economic, jurisprudence and policy three aspects. From the economic foundation, the important elements of the naissance of the anti-monopoly law exemption system lies in that monopoly has positive and negative influence on economic development; from the jurisprudence foundation, anti-monopoly law exemption system is the significant embodiment of the legal value multiplication, anti-monopoly law and the value of the exemption system is identical in content but different in form, the core of them is realizing the social overall benefit and protecting consumer's benefit. From the policy foundation, the function of competition law is boosting competition and restricting its confine at the same time by legal means, to harmonize competitive policy with industry policy, social policy and economic policy. The anti-monopoly law exemption system is to correspond with various advantaged and disadvantaged relation, select the outcome of the preferential policy object, vindicate the national economic benefit and social public benefit. Finally, dissertate the value of the anti-monopoly law exemption system, contains social benefit value, social justice and efficiency value.The second part is the applicable scope of anti-monopoly law exemption system. It includes the special industry (the nature monopoly industry, the banking and insurance trade, the agriculture, the gymnastic industry), the special action (the special cartel, enterprise merger), the intellectual property rights, the specific organization or the personnel and the external trade. When anti-monopoly law carries on the exemption to the above object, also has stipulate the related exemption condition, therefore the whole exemption is relative, because if any right dose not be limited, all exist the abused possibility. Looking from the developmental trend of anti-monopoly law exemption system, the exemption scope will be more and more small, the exemption mode also gradually transforms from the past severe department or industry exemption to the temperate behavior exemption. Take the nature monopoly industry for example, it has many characteristics which contains monopoly, public welfare, region limited , can't be selectivity of consumer and user. So numerous countries are cautious to the problems of this industry. The operators of nature monopoly industry as an economic entity, also pursue definite economic targets, but at the same time has to incarnate the commonweal characteristic. Therefore, various countries plunge into the dilemma situation. Whereas people had new understanding on the nature monopoly industry along with the development of social economic and science. A good many countries started to release the control, implement non-nationalization and introduce competitive mechanism.The third part is the applicable procedure of anti-monopoly law exemption system. The procedure mainly includes prior sanction and ex post facto checkup combinative pattern, ex post facto checkup dominant pattern. The first one is adopted by multitudinous countries and regions, also has much more influence. Its most characteristic is that exert the effect of anti-monopoly charge departments and other administrative departments on exemption of checkup and sanction. Certainly, it likewise has hidden trouble which is work efficiency and justice of administrative departments. In the other pattern, operators can actualize restrictive competitive behavior and that don't have to apply. It is very brief and convenient. Moreover, after the restrictive competitive behavior happens, if court or charge department validates it lawbreaking or can't be exempted, the operators must bear legal obligation. It has great legal venture.The forth part is perfecting China's anti-monopoly law exemption system. Above all, hackle the actuality. Next, analyze the limitation of the applicable scope (special industry, special cartel, enterprise merger, intellectual property rights) and bring forward advice. The author deems that public enterprise should be brought into the scope, applying commonly but exempting exception; the relation between anti-monopoly law and the clauses of industry law is ecumenical and special law; anti-monopoly law is the basic legal system of protecting competitive order and has guidance sense to other industry law. The factors of affecting competition on enterprise merger yet includes bankruptcy merger, vail to advance international competitive enterprise merger, redound to form scale economic little enterprise merger. In the end, on applicable procedure aspect, china should establish a uniform and unattached executive department as soon as possible; on detailed procedure aspect, conform to the process which are application, checkup, sanction, justice review, the change and surveillance of exemption. Furthermore, we should establish correlative law and code apace to boost up the practice of anti-monopoly law. But in this course, we should be established in the background of socialism market economy and global economic, assimilate successful experience of developed countries, absorb the tora of transformation countries, adjust measures to local conditions and actual circumstance. Looking forward to establishing a series of anti-monopoly law exemption system to be adapted for china's economic development.