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    垄断行业 现状 论文
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    Rev Ind Organ (2012) 41:7–30DOI 10.1007/s11151-012-9343-yChina’s Antimonopoly Law 2008: An OverviewAllan FelsReceived: 27 October 2011 / Accepted: 10 February 2012 / Published online: 2 March 2012© The Author(s) 2012. This article is published with open access at Springerlink.comAbstract This article outlines the economic, legal, and political background, gen-eralfeatures,mainprovisions,andenforcementmechanismsofChina’sAntimonopolyLaw 2008 and describes some early developments in its application.Keywords China’s anti-monopoly law · Law and enforcement with Chinesecharacteristics1 IntroductionChina’s Anti-Monopoly Law (AML) was adopted on 30 August 2007 and came intoeffect on 1 August 2008. Its introduction was an inevitable consequence of China’sdecision in the late 1970s to adopt a policy of reform and opening up of the econ-omy internationally, and in 1993 to take further critical steps towards implementing a“socialist market economy” philosophy. China, like most other countries, recognisedthat once the market is acknowledged as being the main means by which goods andservices are delivered to the community, governments have to ensure that the marketworks well and this above all requires the market to be competitive or at least not tobe hindered by unwarranted anticompetitive structures and behaviour.Following some piecemeal steps towards the introduction of competition policy inthe 1980s, work on a modern comprehensive competition law commenced in 1994.Then followed a lengthy process of drafting, debate, and very extensive and oftenfruitful consultation internationally as well as within China. The outcome is a lawthat broadly resembles best practice competition law of other countries, although thelaw also has considerable scope for alternative interpretations and as the ChineseA. Fels (B)The Australia and New Zealand School of Government, P.O. Box 230,Carlton South, VIC 3053, Australiae-mail: [email protected] A. Felsthemselves affirm, “Chinese characteristics”, which are adaptations stated to be suit-able to China’s stage of development and socialist market economy policies.ThisarticleoutlinesthepoliticalandeconomicbackgroundoftheAML,thehistoryofChina’scompetitionlawpriorto2007,themainrulesoftheAML,theadministrationand enforcement arrangements, and some early developments. The article particularlyfocuses on three issues: (1) the “Chinese characteristics” of the law; (2) the specialtreatment of the problem of “administrative monopoly”; and (3) the challenges ofadministering and enforcing the new law in a country with such a large population andadistinctiveeconomic,legal,andpoliticalsystem.Thearticleconcludesbyidentifyingcurrent issues and challenges.2 Economic and Political BackgroundFrom 1949 to 1978 central planning in China largely suppressed the role of the mar-ket and of competition (Naughton 2007). The role of the law as a means of settlingcommercial disputes was also weakened. Since 1978, however, there have been threebroad developments that are especially relevant to competition law and policy:The first has been a transformation away from central planning—essentiallydiscarded after 1978—and in the direction of a market economy, albeit with a substan-tial continuing government role. China terms itself as a “socialist market economy”,a term that has many connotations but implies, inter alia, a commitment to a market-driven, open economy but with a significant degree of state planning and interventionand a substantial role for state-owned enterprises (SOEs).In 2006, the State Council affirmed a core role for SOEs, stating that the “Stateshould solely own, or have a majority share in, enterprises engaged in power gen-eration and distribution, all petrochemicals and natural gas, telecom and armaments.The State should also have a controlling stake in the coal, aviation and shipping indus-tries...CentralSOEsshouldalsobecomeheavyweightsinsectorsincludingmachinery,automobiles, IT, construction, iron and steel and non-precious metals.”1In addition, there is state dominance in banking, insurance, much of the rest offinance, media, tobacco, and railways.The second development has been the dramatic transformation from being an eco-nomically backward, agricultural-based economy to a modern economy with a strongindustrial base, a much higher level of average income than was true 30years ago, anda considerable exposure to the world economy through trade and investment as wellas through the World Trade Organisation (WTO) accession in 2001.The third has been a gradual trend not only to the restoration of a role for the law asan instrument for resolving commercial disputes but also to the adoption of Western(especially European) commercial law approaches both in terms of substance andprocess. This trend, however, has far to go before it could be equated with Westernpractices. Moreover, the adoption of the role of law is not to be equated with the1See Questions and Answers regarding China’s SOEs at http://www.china.org.cn/english/features/Q also see the National Bureau of Statistics of China, Communiqué on Major Data of theSecond National Economic Census (No. 1), at http://www.stats.gov.cn/english/newsandcomingevents/t20091225_402610168.htm.123China’s Antimonopoly Law 2008 9adoption of the rule of law, with its like treatment of like persons, irrespective of theirstatus or relationships. There is also a considerable way to go in this dimension ifWestern standards are to be achieved (Peerenboom 2002).Besides these developments there are a number of significant continuing featuresof the economic and political environment that bear on competition law. First, thereis much official and public concern about any potential foreign dominance of Chi-nese business and a strong desire to build up Chinese business, including “nationalchampions”, that can participate in Chinese and global markets. There is also, how-ever, a desire to benefit from technology transfer from foreign to Chinese interests; togain access to foreign markets; to learn about competition law from foreign countries;and to benefit from cooperation from other competition law enforcement agencies inappropriate cases (Huang 2008, 122–123).Second,thereareconventionaldebatesabouttheroleofcompetitionlawandpolicyin the economy. These debates are not dissimilar to those in developed and develop-ing economies about underlying policy objectives, core characteristics and processes,administration and enforcement, and the relationship of competition policy to otherpolicies, such as industrial policies (Wang 2009, pp. 584–587).Third, the coexistence of a system of economic reform and modernisation with anon-democratic party-led socialist economy system establishes a somewhat differentpoliticalor“authorising”environmentwithinwhichcompetitionlawandpolicyworks(Huang 2008, pp. 118–119). And fourth, with 1.3 billion people and the substantialgeographicspreadofthepopulation,China’sgovernance,administration,andenforce-ment present large challenges for competition law.3 Development of Competition Law Prior to 2007Many laws and regulations with competition elements were enacted after 1978. Theywere not comprehensive, but piecemeal. Importantly, many remain in force notwith-standing the AML and hence need review. China’s first regulation about competi-tion, issued by the State Council in October 1980, was the Interim Provisions for thePromotion and Protection of Competition in the Socialist Economy, widely referredto as the “Ten Articles on Competition”. They stressed the importance of eliminat-ing regional blockades and department divisions, ordering that no region or depart-ment may blockade the market or prohibit the sale of commodities originating inother regions or departments. However, they relied on the regions and departmentsthemselves to implement these principles, with seemingly limited effect (Wang 2002,pp. 216–217).TheCircular on the Prevention of Regional Market BlockadeswasissuedinNovem-ber 1990. Thus the question of regional restrictions on competition, trade and invest-ment—often termed as “administrative monopoly”—was recognised from the start ofthe reform period as very important, probably even more important than other compe-tition questions. It remains critical and is addressed in the AML, as discussed below(Wang 2002, pp. 221).Formal competition legislation began in the late 1980s. The first general law thatrelated to competition was the Anti-Unfair Competition Law (AUCL), which was12310 A. Felsadopted in 1993.2The AUCL prohibits unfair trading practices, including passing off,commercial bribery, misleading advertising, commercial secrets infringement, illegalprize-attached sales, and defamation, and certain types of anticompetitive behaviour,including designated transactions by public utilities, administrative monopoly, below-cost sales, tying, and bid rigging.3The AUCL addresses abusive behaviour by utilities. It prohibits public utilities andstatutorymonopoliesfromimposingcertainrestrictivetransactionsontheircustomers(AUCL, Art. 6). These prohibitions concern telecoms, electric power, and water andgas suppliers that supply services only if customers buy designated telephones, distri-bution boxes, meters or heaters (Wen 2008, pp. 165–166). The AUCL also prohibitssales below cost and tying (AUCL, Arts. 11 and 12). These prohibitions, however, donot depend on showing that the firm has a dominant position. The AUCL prohibitiononsalesbelowcostisnotaperseruleasitcontainsarequirementofintenttoeliminatecompetitors, and it provides for exceptions (AUCL, Art. 11).4The State Administration for Industry and Commerce (SAIC) and its local admin-istration for industry and commerce branches (AICs) above the county level are theprimary enforcement agencies of the AUCL (AUCL, Art. 3).5Enforcement is mainlyentrusted to the AICs, and they are principally active in cases about passing off, mis-leading advertising, and commercial bribery.In 1997, the Price Law was adopted mainly as a price control law for key com-modities and services, but it also prohibits certain “unfair price activities”, includingcollusion to control price, below-cost sales, discriminatory pricing, and seeking exor-bitant profits.6The National Development and Reform Commission (NDRC), whichenforces the Price Law, issued the Interim Provisions on Preventing Price Monopolyin2003toelaborateitsprohibitionsandmadesomeprogresstowardsputtingthemintoa competition policy framework by linking them to the existence of dominance. Theseregulations provided that a firm may not rely on its “market predominant position” toengage in exploitative, predatory or discriminatory conduct.72The AUCL was promulgated by the Standing Committee of the National People’s Congress (NPC) on2 September 1993 and effective on 1 December 1993, English translation available at http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383803.htm.3See AUCL, Arts. 5, 8–10, 13–14 on unfair trading practices and Arts. 6, 7, 11, 12, and 15 on anti-competitive behaviour.4The exceptions include the sales of fresh goods, seasonal goods, goods nearing expiry, or other over-stocked goods at reduced prices or the sales of goods at reduced prices due to debt repayment, switch inproduction, or close of business.5However, it should be noted that Article 3 has caused potential inter-agency conflicts between the SAICand other administrative bodies because it further provides that where laws or administrative regulationsstipulate that other departments shall exercise the supervision and inspection of unfair competitive behav-iour, those provisions shall apply.6See Price Law, Art. 14. The Price Law was promulgated by the Standing Committee of the NPC on 29December1997andeffectiveon1May1998,Englishtranslationavailableatwww.fdi.gov.cn/pub/FDI_EN/Laws/law_en_info.jsp?docid=50956.7The Interim Provisions on Preventing Price Monopoly were repealed on 1 February 2011 alongside theentry into force of the NDRC’s Measures on the Prohibition of Price Monopoly, which accompany theAML. See the discussion in Sect. 7.1 below.123China’s Antimonopoly Law 2008 11The Provisions on the Prohibition of Below-Cost Sales, which was issued in 1999,expanded the notion of what is considered to be a sale “below cost” under the PriceLaw. The term “cost” refers to the cost of production and operation. This probablyimplies a test based on variable cost, although average cost and the scope of the pricecut may be relevant if variable cost cannot be determined. The provision applies ifthereisintenttoeliminatecompetitorsormonopolisethemarket;pricingbelowcostispermitted for such reasons as clearance sales.8The Administrative Measures for FairTransactions between Retailers and Suppliers (hereinafter “Retailers and SuppliersMeasures”), which was issued in 2006, prohibits agreements requiring resale pricemaintenance directly sold by suppliers to consumers and other operators, tie-in sales,or exclusive dealing. The Retailers and Suppliers Measures also cover other commontopics of dispute in distribution relationships, such as timely payments, returns, andpromotional support.9In 2003, a merger-control regime was introduced as part of the Interim Provisionson Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (the M and under the AUCL, tying is prohibited irrespective of thebusinessoperator’smarketposition,butthewrongdoerisonlysubjecttocivildamagesto the injured business operator (AUCL, Art. 20).Another example isbidrigging. Although not explicitly prohibited under the AML,bid rigging, as a type of hardcore cartel, could be caught under Article 13 (6) of AML,and the wrongdoer could be fined up to ten percent of its turnover in the precedingfinancial year.12However, bid rigging is also prohibited under the AUCL and the Bid-ding Law and can be prosecuted under the Criminal Law, where conviction could leadto fines and up to 3years’ imprisonment. Enforcement against bid rigging has resultedin particularly strong sanctions.13In this area, as in other areas of overlap, regulatorshave a choice as to the law or set of laws that they apply.Accordingly,theAMLcannotbeconsideredinisolationfromprecedinglaws,someof which, if applied, go beyond the generally accepted principles of competition lawwith its emphasis on the protection of competition, not competitors.Finally, price control laws remain. Although they are not usually regarded as partof competition law, they have a relationship. A price law may affect competition—aceiling on monopoly prices may deter entry or, in the case of oligopoly, facilitate col-lusion—or in other cases may replace the application of competition law. Currently,there are signs of a rise in inflation in China, and this may generate greater recourseto price regulation with possible side-effects on market functioning and competition.5 General Features of the Antimonopoly LawIn May 1994, the AML was formally placed on the legislative agenda, and the govern-ment formed a group
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