The Balance Of Interests In The Anti-monopoly Law Enforcement Reconciliation System

Anti-monopoly law enforcement reconciliation system originated in the United States and has been widely used in the United States and European countries since the middle and late 20th century.The so-called anti-monopoly law enforcement reconciliation refers to the law enforcement agencies in the process of enforcing the law on suspected monopoly operators,based on the voluntary negotiation and consultation between the two sides,in order to finally reach a settlement agreement to resolve the anti-monopoly disputes.The main advantage of this system is that it can save resources and improve efficiency in the process of law enforcement.Article 45 of the Anti-Monopoly Law of the People’s Republic of China(hereinafter referred to as the Anti-Monopoly Law)in 2008 introduced the anti-monopoly law enforcement and reconciliation system.Articles 15 to 19 of the Procedural Provisions for the Investigation and Disposal of Monopoly Agreements and Cases of Abuse of Market Dominance promulgated by the State Administration for Industry and Commerce in 2009(hereinafter referred to as the Proce In 2010.Articles 15 to 18 of the Procedure Provisions for A dministrative Law Enforcement of Anti-Price Monopoly promulgated by the National Development and Reform Commission(hereinafter referred to as the Procedure Provisions of the Development and Reform Commission)refined and improved the specific implementation measures of the reconciliation system of anti-monopoly law enforcement.It can be seen that the system is very important..However,there are still some problems,such as the lack of operability,the lack of public interest protection,and the application of the reconciliation system has been controversial.It is not only legislation,but also the first case dealt with by the anti-monopoly law enforcement and reconciliation system in practice:China Telecom and China Unicom monopoly case,which has also been criticized by the general public and many scholars.Monopoly cases not only have certain complexity,but also have many changes in reality,which makes the application of the anti-monopoly law enforcement reconciliation system in China difficult.The reason why the system has been questioned is that the distribution of interests of relevant personnel and the allocation of social resources will be directly affected by the application of the system,and there will be persistence in the implementation process.The conflict of interests between the two sides of the law,stakeholders,consumers and competitors.There is no doubt that the efficiency goal of anti-monopoly law coincides with the goal of protecting economic welfare.But besides emphasizing the value of efficiency,the importance of economic fairness can not be ignored.The balance of efficiency value and fair value requires us to pay full attention to the balance of interests.This paper comprehensively uses case analysis,law and economics analysis,comparative analysis,legal hermeneutics analysis and other methods,on the basis of theory and practice,to conduct in-depth analysis and investigation of the anti-monopoly law enforcement reconciliation system.The main body of the article is divided into five parts:The first part,the introduction part,starts from the monopoly cases of China Telecom and China Unicom,through a brief analysis,based on this,extracts the problems.This paper summarizes the background and significance of this topic,combs and summarizes the research status at home and abroad,evaluates the existing research results,and briefly introduces the research methods and ideas of this paper.The second part investigates the general basic theory of the reconciliation system of anti-monopoly law enforcement.Starting from the connotation of the reconciliation system of anti-monopoly law enforcement,it demonstrates the rationality of the system by analyzing the legal attributes of the reconciliation system of anti-monopoly law enforcement with informal law enforcement procedures,remedial law enforcement methods and mixed contracts of public and private law.namely,the value orientation of fairness and efficiency and the unique economic logic.The third part focuses on the conflict of interest in the anti-monopoly law enforcement and reconciliation system,and analyses the main body,manifestation and causes of the conflict of interest.Due to the unequal status of law enforcement parties,conflicts of interest inevitably arise between anti-monopoly law enforcement agencies and operators involved in monopoly.In addition,conflicts also exist between competitors,consumers,stakeholders and other third parties.The direct cause of conflict of interest is the lack of anti-monopoly legislation in China.The theoretical cause of conflict of interest is the dilemma of applying contract theory in the field of economic law.The fourth part is how to achieve the balance of interests of the anti-monopoly law enforcement reconciliation system,which starts from three aspects.Firstly,we should clarify the scope of application of the system.The system should never be applied in cases of serious violations of the law,cases without access to investigation procedures,and cases where law enforcement agencies have fully grasped the evidence of monopolistic acts.Secondly,we should adhere to the principles of procedure openness,power restriction and balance of interests.Thirdly,it is about the construction of interest balance mechanism.For law enforcement agencies,rights and obligations should be clearly defined,and judicial supervision should be strengthened;for the operators under investigation,not only through detailed written reporting system to urge timely rectification and eliminate the impact of monopoly,but also to grant the right to request changes,suspension and resumption of investigation decisions,and to guarantee the way to obtain relief through administrative reconsideration or administrative litigation;Fang should improve the procedure of public notice and feedback of opinions,establish a hearing and consultation system,and establish a public evaluation mechanism to protect interests.The fifth part summarizes the content of the article in the conclusion.As an important part of the anti-monopoly law,the reconciliation system of anti-monopoly law enforcement has its indispensable value and function.Through the reconciliation system,law enforcement agencies can become more efficient and warmer in law enforcement.Balancing the interests of all parties in the application of the reconciliation system can reduce the confrontation between citizens and the government.It is conducive to creating a mutually beneficial and cooperative law enforcement atmosphere and further promoting the development of anti-monopoly law in theory and practice.