Research On The Anti Administrative Monopoly Litigation

The development of the rule of law cannot be separated from the effective regulation and restriction of administrative power. The essence of administrative monopoly is the alienation of administrative power, which usually refers to the abuse of administrative power to prevent, restrict or exclude competition. It destroys the order of free competition in the market and compresses the subjective space of self-management and self-regulation of the market. Therefore, in addition to traditional antitrust enforcement, the regulation of administrative monopoly behavior also needs the intervention of judicial power to act as the bridge between government and market in order to regulate improper economic intervention of government and maintain free competition in the market. Moreover, it can be seen from the study of antitrust litigation system of other countries that bringing the administrative monopoly into the scope of judicial review is a multinational practice. According to article 12, paragraph 8 of the Administrative Procedure Law, administrative monopoly is within the scope of administrative litigation, which follows the trend. While because the previous Administrative Procedure Law has not done so and the litigation of administrative monopoly were mostly dismissed or withdrawal of the plaintiff, it leads to the few number of lawsuit of anti-monopoly administrative and few articles on research and design of anti-monopoly administrative at home, especially in the aspect of current status, restricting factors, development conditions, the pursuit of values, litigation modes and litigation rules. Based on such situation, this article makes a deep discussion and detailed analysis about domestic anti-monopoly administrative litigation concentrating on article 12, paragraph 8 of the Administrative Procedure Law. The thesis is divided into four parts:The first part : basic introduction of the anti-monopoly administrative litigation. First it defines the concept of anti-monopoly administrative litigation and summarizes its basic features with the conclusion that it can be covered by the administrative litigation whether it is caused by the object of action or the structure of the party. Secondly, it further demonstrates the development conditions of the anti-monopoly administrative litigation, which has a solid theoretical support, irreplaceable comparative advantage and practical conditions. These three conditions respectively are the nature of jurisdiction and administrative control power under the constitutional frame and the attribute of judicial balance; the neutrality, participation and openness of the proceedings; the current legal support, reform and the foreign system for reference. The three conditions jointly promote the formation and development of the anti-monopoly administrative litigation.The second part: the operation of the anti-monopoly administrative litigation. This part mainly discusses the two ways of the study of the foreign system and the current situation of the country. First of all, there is a comparison of the extra territorial system. Through the research on the developed countries as well as the transitional countries, it is concluded that there are two main modes, namely, the administrative-oriented and judicial-oriented. Each country has its own feature in the mode of prosecution, the examination method, the jurisdiction of the court, the plaintiff qualification and the scope of the case and so on. Secondly through the of case analysis from micro perspective, it points out that the domestic anti-monopoly administrative litigation is still facing many problem, such as low filing rate, the main body not comprehensive, low success rate, single type and so on. What's more, due to the fact that judicial power in the country relies on administrative power, lacking traditional consciousness of anti-competition and the existing procedural rules are limited, China's practice of anti-monopoly administrative litigation is in the doldrums over a long period of time. Therefore the reconstruction of anti-monopoly administrative lawsuit is particularly necessary.The third part: the value model of anti-monopoly administrative litigation. Through the above analysis we know that the basic reason of anti-monopoly administrative lawsuit system running sluggish is that the theoretical research does not reasonably construct the value pursuit of administrative monopoly lawsuit in the future from the deconstruction of the status and development bottleneck of administrative monopoly lawsuit. It causes the mode positioning of administrative monopoly lawsuit not clear and cannot play its independent value. Therefore, through careful study of Anti Monopoly Law and Administrative Litigation Law, the author argues that anti-monopoly administrative lawsuit should in pursuit of the value of protecting public interests and competition in the future. It also determines that the anti-monopoly administrative litigation mainly in objective litigation, at the same time, it needs to introduce the administrative public interest litigation.The fourth part: the perfection of anti-monopoly administrative litigation. This part aims to improve the anti-monopoly administrative litigation from internal and external perspective. First, from the external view, the perfection of anti-monopoly administrative lawsuit needs to correctly handle the relationship between antitrust enforcement and administrative reconsideration. Before the prosecution, it does not need a reconsideration lead, but a antitrust enforcement. Secondly, from the internal view, anti-monopoly administrative litigation needs to make refinement in the object of litigation, plaintiff qualification, scope of the case, under the jurisdiction of the case, expert assistant, form of judgment, and the allocation of the burden of proof link in the future.