A Study On The Regulation Of Administrative Monopoly By Anti-monopoly Law And Administrative Law

The administrative monopoly has been a main obstacle to the development of market-economy of China, it is more harmful than economic monopoly. How to regulate administrative monopoly is a difficulty of our country. Discussing the basic theory of administrative monopoly, and the relations between administrative monopoly and economic monopoly, national monopoly, natural monopoly, can make its position clearly. In our country there are several controversies on the way to regulation of administrative monopoly. Among these arguments, the focus is which law Anti-monopoly law or Administrative law can control the administrative monopoly more effectively. Probing this clearly is not only useful to restrain the administrative monopoly, but also helpful to perfect legislation in the future. According to the theory of legislation regulation of foreign country, we can see that the Anti-monopoly law of most countries prescribes the administrative monopoly, but the Administrative law also has its own function. Meanwhile, executive power has been the core in our country all the long, the Administrative law should play a more important part in regulating the administrative monopoly. To figure out the relationship between Anti-monopoly law and Administrative law on the regulation of administrative monopoly, we need to make a comparison between the two laws, from the way of the principle of regulation, the principal of enforcement of law, the means of enforcement of law, in terms of relief. Then we can have a conclusion that because Anti-monopoly law is the integration of public and private law, has the nature of public law. Its principal of law enforcement is administrative body, the basic means of law enforcement is also the same with administrative body. The Anti-monopoly law was promulgated to adjust monopoly specially. So the Anti-monopoly law is the special law, adjusts abusing administrative power which causes the competition exclusion, the Administrative law is the general law on the regulation administrative monopoly, regulates abusing administrative power. The two laws assort each other. While the two laws of our country have their limitations. In order to restrain the administrative monopoly better, Anti-monopoly law should give a more clearly general definition of administrative monopoly, and establish a strict liability mechanism, in the same time to strengthen enforcement of the law. Administrative law needs to perfect administrative procedures to enhance the supervision of the administrative, include abstract administrative monopoly to the scope of administrative litigation, and establish the public prosecution procedure, whose prosecutor is executive institution of Anti-monopoly law.