Study On The Application Of The Confiscation Of Illegal Income System In The Antimonopoly Law

According to Article 56 and Article 57 of the Anti-monopoly Law,the anti-monopoly enforcement agency shall confiscate the illegal income and impose a fine as a property penalty for monopolistic acts of entering into a monopoly agreement or abusing a dominant market position.From the legislative provisions,the liaison between confiscation of illegal revenue and fine is "and" rather than "or",which does not give the anti-monopoly enforcement agency discretionary power.However,in the actual enforcement cases,the antitrust enforcement agencies often ignore the application of confiscation,and there is the phenomenon of "single fine",which is a serious deviation between legislation and enforcement.In the theoretical field,the frequent absence of illegal income in the antitrust enforcement cases has also led to the debate in the academic field on whether the administrative liability of the antitrust law should be confiscated or fined.Therefore,it is necessary to conduct an in-depth study on the use of the system of confiscation under antitrust law,in order to eliminate the many controversies in practice and in the theoretical circles on the application of the system,so as to better play the role of the antitrust law.The main part is splited into five sections.The first sections is the theoretical interpretation of the confiscation of illegal income in the antitrust law.By comparing the different provisions and interpretations of other domestic sectoral laws on confiscation of illegal income,it provides ideas for the interpretation of confiscation of illegal income in the field of anti-monopoly,and aims to explore the proper meaning of confiscation of illegal income in anti-monopoly penalties.The purpose is to explore the relationship between fines and confiscation of illegal income,and to explain that confiscation of illegal income has its unique functional position and purpose.Finally,based on the doctrinal basis and practical needs of confiscation of illegal income,it is pointed out that before the systematic reform of China’s antitrust law system,confiscation of illegal income is still necessary in China.The second part is a practical examination of the application of the system of confiscation of illegal income under the anti-monopoly law.Through the practical examination of the relevant administrative penalty decisions published in the last three years,it visually shows whether and how the anti-monopoly enforcement agencies have applied the confiscation of illegal income.The third part is the analysis of the enforcement dilemma of China’s antitrust law.This chapter aims to summarize the problems in law enforcement,and points out the obstacles to the application of the confiscation of illegal income system,including the overly broad scope of application of illegal income,the lack of a uniform basis for calculating illegal income,and the inefficiency of law enforcement due to the mishmash of qualitative and quantitative work.The fourth part is an extraterritorial examination of the application mode of antitrust confiscation..In the application of anti-monopoly confiscation of illegal income,the relationship between fines and confiscation of illegal income is very important.Therefore,it is necessary to systematically examine the way different countries and regions deal with illegal income in antitrust administrative penalties in order to gain experience and lessons from them.The fifth part is the solution to the enforcement dilemma of confiscation of illegal income.For the aforementioned enforcement dilemma,on the premise of examining the extraterritorial legislative model,the author puts forward a number of solution ideas in light of China’s basic national conditions.In the scope of application of confiscation of illegal income,the same civil law country,Germany’s reuse model,the confiscation of illegal income using "principles +exceptions";the exclusion of reasonable income and reasonable profits as a unified part of the calculation of illegal income standards;can not determine the amount of illegal income when the introduction of the imputation system;entrusted third-party professional assessment The law enforcement efficiency is improved by commissioning a third-party professional evaluation agency;the confiscation of illegal income is used as the basis for the discretion of fines to ensure that the amount of fines can cover the illegal income as much as possible;the establishment of a special fund account for anti-monopoly remedies and the return of illegal income provide a smooth channel for the connection between different anti-monopoly remedies.