Study On The Administrative Enforcement System Of Japanese Anti-monopoly Law

Having been acknowledged as an “economic constitution” by the world all thetime, anti-monopoly law plays an important role in promoting competition andmaintaining competitive order. Anti-monopoly Law of the People’s Republic ofChina has always been extensively concerned ever since the day when it was put intoeffect, people from all walks of life have very high expectations towards the functionof this law. The formulation of anti-monopoly law is an indispensable part forestablishment of the market economic system and the maintenance of competitiveorder. However, whether a law can play its due role in practice needs to be examinedand weighed in various aspects. Among them, the forceful implementation of lawenforcement agencies is a key factor and only by being effectively enforced can aformulated law realize its value. Punishment is the most important part of lawenforcement and good punishment system is able to prevent crimes. Under therapidly developing economic situation at present, Anti-monopoly Law of thePeople’s Republic of China has encountered some problems, especially whenChina’s administrative law enforcement system gradually can on longer keep upwith the pace of market economy development, and improving China’sadministrative law enforcement system has become a task that can not be delayedeven a moment. As a country that made its law following other countries legislativeexperience like China, Japan has much useful experience that is worth learning.The Fair Trading Commission is the administrative law enforcement agency ofthe anti-monopoly law in Japan. As the organization that represents the exclusivepower system, the Fair Trading Commission has strict regulations about itsorganization structuring and personnel arrangement, which fully maintains theindependence and profession of the Fair Trading Commission. The function andpower setting of the commission also reflects its independence. The Fair TradingCommission not only has the executive power general administrative organizationshave, but also has the quasi-legislative power at the same time. The anti-monopoly administrative penalty power is also affiliated to the Fair Trading Commission, andthe punishment ways mainly include formal punishments such as exclusion measures,the surcharge system, criminal punishment, compensation for damages etc. andinformal punishments like persuading, warning, notification, right of relief,prohibition, publishing guidelines and macro investigation. Diversified punishmentways have laid a solid foundation for the effective operation of Japan’santi-monopoly law. As the saying goes that no one is perfect, so is the law. Not allthe systems of Japan’s administrative enforcement of the anti-monopoly law areperfect. The latest amendment has abolished the Fair Trading Commission’s judicialprocedure, and as a result, the Fair Trading Commission’s original quasi-judicialpower has been deprived, which is to the disadvantage of maintaining theindependence of the law enforcement agency. Increase of the fine rate of thesurcharge system has objectively turned the surcharge system into a punitivepunishment way and it is not just the system at the very beginning that was used toconfiscate unjust enrichment. In this way, it is inconsistent with Japan’s constitutionthat prohibits dual punishments. This problem has always been a hot issue discussedby Japanese scholars and denounced by the academic world. In addition, theexclusive accusation power system related to criminal punishment did not play itsdue role in practice.Compared with Japan’s anti-monopoly administrative law enforcement system,China’s administrative law enforcement agencies should be improved so as toenhance its independence and profession. In the long run, the quasi-judicial powershould be introduced by establishing law enforcement agencies with exclusive powersystem; in the short term, current law enforcement departments can be reformed.Administrative penalty rules should be refined by referring to Japan’s penalty rulesrefined by its surcharge system based on current administrative penalty rules.Develop informal punishment ways. China should develop other informalpunishment ways based on its current published guidelines. China should graduallyimprove its anti-monopoly administrative punishment system and form a completeanti-monopoly law enforcement system so as to protect market economy competitiveorder. An independent, professional, authoritative and efficient executing agency should be established, and scientific, rational and convenient punishment waysshould be applied so as to make contributions to the development of socialist marketeconomy.