法学专业 外文翻译 外文文献 英文文献 从中国反垄断立法看行政垄断的法律规制.docx

1、法学专业 外文翻译 外文文献 英文文献 从中国反垄断立法看行政垄断的法律规制Legal Regulation of Administrative Monopoly As Viewed from Chinese Antimonopoly LawLing WangLaw school of Shandong University of TechnologyZibo 255049, Shandong, ChinaAbstractThe administrative monopoly breaks the principle of justice, and has large harm to the

2、society. The special chapter in Chinese Antimonopoly Law regulates the contents and corresponding legal responsibilities of administrative monopoly, but the law still has some deficiencies. The Chinese Antimonopoly Law should be perfected from increasing the operation property, confirming the compre

3、hensive legal responsibilities, confirming the law enforcement agency of anti-administrative monopoly, expanding the range of legal regulation and establishing the judicial review system.Keywords: Chinese Antimonopoly Law, Administrative monopoly, RegulationIn china, the administrative monopoly main

4、ly means the behaviors that administrative subjects harm the market competition and destroy socialism market economy order by the administrative power. The administrative monopoly initially belongs to economic monopoly, and its harm is more than economic monopoly, and it destroys the principle of ju

5、stice, and induces the occurrence of unfair competition and monopoly in special market, and it harms the benefits of most market subjects, and largely wastes effective resources, and blocks the establishment and perfection of the socialism market competition mechanism. Therefore, it should seek solu

6、tion and regulation methods from various approaches for the administrative monopoly. Only in this way, the obstacle of Chinese economic system reform and the development of market economy can be removed, which can promote the quick development of economy, enhance the living level of people, improve

7、the total survival environment, and realize the harmony and stability of the society.1. Regulation of administrative monopoly in Chinese Antimonopoly LawFor the regulation of administrative monopoly, there are many researches and discussions among Chinese scholars, and the system reform view and the

8、 legal regulation view are representative views. The system reform view thinks that the administrative monopoly is the product of system, and it can be completely solved by deepening the economic system reform and the political system reform, and the legal measure is hard to solve the problem of adm

9、inistrative monopoly. The central content of the legal regulation view is that the administrative monopoly is very harmful, and it must be forbidden mainly by the laws. The legal regulation view is also can be divided into two factions, and one is to mainly use the administrative law to regulate the

10、 administrative monopoly, and the other thinks that Chinese Antimonopoly Law is the main power to regulate the administrative monopoly.Because Chinese economic and political system reform is a gradual process which needs quite long-term endeavors, and this transfer needs large patient and willpower,

11、 so the administrative monopoly has been a very hot potato at present, and it has seriously blocked the economic development of China with large social harms, and it even blocks the economic and political system reforms which is being in China, so it must be forbidden as soon as possible, or else, t

12、he large destroying function on the development of Chinese economy will be hard to image. Therefore, it is too ideal to only depend on the system reform to regulate the administrative monopoly, and the effect is not obvious. In the present national situation, law is the feasible measure to regulate

13、the administrative monopoly. Because the administrative monopoly roots in economic monopoly and has many characters and harms of economic monopoly, more and more legal scholars want to utilize Chinese Antimonopoly Law to regulate the administrative monopoly. “It is the characteristic of Chinese Anti

14、monopoly Law to take the administrative monopoly as the control object of antimonopoly, and it seems a necessary selection according to the national situation, because the administrative monopoly forming in traditional planned economy system is impossible to be removed by administrative measure, and

15、 it can only be solved by the legal measure, i.e. the Antimonopoly Law (Zhang, 1993, P.357)”. At August 1 of 2008, Chinese Antimonopoly Law became effective in peoples expectations, and the fifth chapter specially regulates the content of administrative monopoly, and the articles from 32 to 37 respe

16、ctively generalize the elimination of administrative power abuse and the behaviors of competition limitation, and completely regulate the concrete represent form of administrative monopoly, and article 51 regulates corresponding legal responsibilities. Thus，the regulation of administrative monopoly

17、is first regulated in law, and the legal approach is the main measure to govern the administrative monopoly, which indicated that the legal regulation view had been adopted finally. The contents of administrative monopoly in the Antimonopoly Law embodies the advancement of Chinese legal theory study

18、 and legislation technology, and it showed the decision of Chinese legislators to standardize the enforcement of administrative power and stop the abuse of administrative power. Of course, law is only one most important measure to regulate the administrative monopoly, and the reasonable and effectiv

19、e reforms in polity and economy also have very important meanings for the regulation of administrative monopoly behaviors.2. Deficiencies of administrative monopoly regulation in Chinese Antimonopoly LawRelative regulations about administrative monopoly in Chinese Antimonopoly Law are active and hel

20、pful exploration to regulate administrative monopoly behaviors by law, and corresponding legal regulations are deeply meaningful and influencing to eliminate the bad influences of administrative monopoly, promote the fair competition, establish normal market order, and guarantee the ordered developm

21、ent of market economy. However, whether relative corresponding systems or the articles in the chapter 5 still have some deficiencies, and the anti-administrative monopoly much still remains to be done.2.1 Regulations are too fundamental to operateThe articles in the chapter 5 of Chinese Antimonopoly

22、 Law are some principled articles lacking in operation, which make the judiciary and law enforcement agencies are difficult to distinguish. And many abstract concepts such as what extent can achieve administrative monopoly, and what is that the abuse of administrative power to block the free circula

23、tion of commodities can not be defined clearly in only five legal articles, so the catchwords of anti-administrative monopoly appear incapable. At August 1 of 2008, the first day when Chinese Antimonopoly Law was implemented, Chinese State Administration of Quality Supervision, Inspection and Quaran

24、tine encountered the first case about Chinese Antimonopoly Law. However, in the expectation of ten thousands of people, this case came to an untimely end, and though the court adopted the article that the limitation of actions was over to evade this case, but it can be supposed that if the court can

25、 not evade it by relative reasons, what is the result? Was the behavior that Chinese State Administration of Quality Supervision forced to push the electric supervision code business of Citic Guoan Information Technology Co., Ltd with its own shares in 69 kinds of product an administrative monopoly

26、behavior? The result might reach the same goal by different routes. And relative regulations about the current antimonopoly law endow law-officers too much discretion to make them to “go after profits and avoid disadvantages”.2.2 The regulations about the legal responsibility of administrative monop

27、oly are deficientChinese Antimonopoly Law regulates the civil, administrative and criminal responsibilities assumed by managers who implement monopoly behaviors in detail, but for the legal responsibility of the behaviors of administrative monopoly, only the article 51 of Chinese Antimonopoly Law re

28、gulates that “If administrative power by government and organizations to which laws and regulations grant rights to administer public issues abuse administrative power, to eliminate or restrict competition, shall be ordered by superior authorities to correct themselves; people in direct charge and p

29、eople directly involved shall be imposed administrative punishment. The antimonopoly execution authorities shall supply suggestion to related superior authorities to handle according to law.” Many administrative responsibilities such as “shall be ordered by superior authorities to correct themselves

30、; people in direct charge and people directly involved shall be imposed administrative punishment” form different legal results of different subjects to implement monopoly behaviors, so people begin to suspect the justice of laws, which virtually helps the administrative subjects to implement admini

31、strative monopoly, and the deterrent force will be reduced largely. At the same time, though the responsibility of Chinese Antimonopoly Law is too lighter and becomes a mere formality, and the law is not obeyed and strictly enforced, so the administrative monopoly remains incessant after repeated pr

32、ohibition.2.3 The jurisdiction of antimonopoly law enforcement institution is limitedThe definition about the anti-administrative monopoly law enforcement agency in the fifty first article of Chinese Antimonopoly Law is still blurry, and on the one hand, the supervision procedures should be independ

33、ently established to restrain laws by this law, and on the other hand, the law regulates that the administrative monopoly should be dominated by superior authorities, and the article that “If administrative power by government and organizations to which laws and regulations grant rights to administer public issues abuse administrative power, to eliminate or