사회주의 시장경제를 추구하는 중국 반독점법상 행정독점 규제

Abstract

Economic law is a law aimed at forming a desirable economic order pursued by a country on the basis of the historical and social background of the country. Thus it is necessary to accompany the understanding of it’s economic order and legal system in the historical and social context of the country for the formation and understanding of the country’s economic law. As part of the process of seeking socialism of Chinese characteristics, China revised the Constitution in 1993 which stipulates that “the state implements a socialist market economy”, and change in the constitutional economic system from the existing socialist planned economy to a socialist market economy has been made. While the process of economic transition in capitalist countries has shifted from free competition to monopoly, China’s economy has shifted from planned economy to market economy. China’s economic law has been formed on the basis of this socialist market economy order, and it is also explicitly stated in the Article 1 purpose provision of the Anti-monopoly law. Due to traditional administrative centralism and long-term management of the planned economic system, the government’s involvement in the market has been universal in China. There has been widespread “administrative monopoly” in which administrative power allocates resources on behalf of market mechanisms. Administrative monopoly has been further strengthened by the decentralization process of economic decision making to local governments in the course of China’s economic reform and the regional competition system adopted to achieve economic growth. This not only hinders the fair market competition order, but also undermines the development of a nationwide unified market, infringes on consumers’ welfare, and causes corruption. At this stage, administrative monopoly has become an institutional obstacle that must be removed in the course of deepening market economy system reform, perfecting the socialist market economy system, and developing competition legislation. Based on this background, Chapter 5 of the Anti-monopoly law of China contains regulations on the exclusion and limitation of competition by abuse of administrative power. The enforcement of the law on administrative monopoly still has weaknesses, but there are signs of improvement to overhaul the socialist market economic system. There were certain limitations on effective regulations because the antitrust enforcement agency did not have the authority to take direct corrective action against administrative monopolies, however, the revised draft of the Anti-monopoly law(2020) specifies the authority of the antitrust enforcement agency to directly deal with administrative monopolies and the obligation of the relevant administrative agencies to cooperate. So it is necessary to observe the trend in the future. The fair competition screening system, which has been introduced and operated since July 2016, is also meaningful as it can function as a proactive prevention and control that complements the limitations of ex post supervision and remedies of administrative monopoly regulations. While efforts to look at China’s Anti-monopoly law under the understanding of China’s historical and social context, law system, and economic order, are needed for neighboring countries, China needs to refine the law as a way to enhance its effectiveness so that it can well establish desirable economic order and market structure. While striving to solve the problems arising from China’s own context, an open attitude to actively accept examples from other countries that can help resolve China’s current anti-competitive status will also be required.