Application Of Confiscation Of Illegal Income In Anti-monopoly Law

Confiscation of illegal gains and fine is the main regulation means of China’s anti-monopoly law to reach and implement monopoly agreements and abuse the dominant market position.At present,fines have more mature theoretical basis,more rich practical experience.In contrast,although the development of confiscation of illegal income has gone through the process from "nothing" to "something",it has not achieved the transformation from "ordinary" to "outstanding".In theory,there is still a debate about the establishment of administrative responsibility of anti-monopoly law,whether to confiscate the illegal gains,impose a fine or to impose a penalty with only a fine.In practice,there are many cases where a fine is applied but no confiscation of illegal income is applied.There will be suspicions of omission of punishment,insufficient deterrence,and difficulty in achieving relief for the victim.Even if confiscation of illegal gains is applied,the punishment decision instrument fails to form a consistent thinking on the scope of application,calculation basis,recovery and disposal,and how to coordinate with other relief measures.In theory and practice,there are disputes over the application of confiscation of illegal income,which is not conducive to preventing and stopping monopoly,safeguarding the interests of all parties and promoting the healthy and rapid development of the market economy.Therefore,it is necessary to discuss the application of the confiscation of illegal income from the anti-monopoly law in order to achieve the original intention of legislation.The paper explores the current situation and existing problems of anti-monopoly practice,summarizes the theoretical and practical experience of other domestic laws and foreign anti-monopoly laws,and gives a response to the dispute over whether the anti-monopoly law should continue to apply the confiscation of illegal gains and how to specifically apply the confiscation of illegal gains.First of all,we should insist to retain and apply the confiscation of illegal gains in the administrative responsibility of anti-monopoly law.In theory,confiscation of illegal gains and imposition of fines can more flexibly cope with the complex and changeable reality and achieve the concept of "best deterrence" than imposing fines alone.In addition,confiscation of illegal gains and fines are irreplaceable.Only by combining the two can we ensure the full play of their roles.In practice,the confiscation of illegal gains follows the logic of China’s anti-monopoly legislation and makes up for the lack of other relief measures.Secondly,the principle of application of the system should be clearly defined,and the scope of application of exceptions should be determined as appropriate to deal with various situations that may arise in disputes.The exceptions must strictly distinguish whether the amount of illegal income is calculated by subjective or objective factors.Taking "excessive income" or "reducing expenditure" as the basis for calculating illegal income,supplemented with the estimation method to measure the amount of illegal income,and promote the separation of qualitative and quantitative work in a timely manner.Thirdly,the recovery of illegal income cannot be limited to the offender.Non-good faith third-party companies must also bear legal responsibility,and the illegal income of outflowed third-party companies must be recovered.As for the confiscated illegal income,it cannot be turned over to the State Treasury “one size fits all”,and different parts should be handled differently.Among the parts where the right of claim exists,priority is given to the victim.Finally,for the connection and coordination between relief measures,the determination of the amount of fines must include the application of confiscation of illegal income into the scope of discretion to ensure that monopoly behavior can still be regulated through fines if the confiscation of illegal income is not applicable.And the administrative confiscation and civil litigation should also form a continuous and active cooperation,so that administrative confiscation could promote civil litigation,while civil litigation could assist administrative confiscation.