중국반독점법의 제정 과제 - 한중 반독점법 비교-

Abstract

China's current competition policy is found in a number of specific laws and administrative rules. The most comprehensive of these is the Anti-Unfair Competition Law, promulgated in 1993. The Anti-Unfair Competition Law contains some provisions that are usually found in antitrust law, such as prohibition of tie-in sales in Article 12 and prohibition of price fixing and bid rigging in Article 15. But the Anti-Unfair Competition Law also adresses many other issues, including bribery, deceptive advertising, coercive sales, and appropriation of business secrets. To a large extent, the Anti-Unfair Competition Law is more like a consumer protection law than an antitrust law. In deciding how to approach administrative monopolies in the new antitrust law, China's antitrust policy makers face a real dilemma. On one hand, as the ubiquity of administrative monopolies has made administrative monopolies the major source of monopolies in China economy, China's antitrust policy makers feel obliged to address administrative monopolies in the new antitrust law. Many commentators believe that without provisions prohibiting administrative monopolies, the new antitrust law would necessarily be incomplete and would lose much of its relevance. Furthermore, without a chapter on administrative monopolies, the public may believe that the government does not have the resolve to fight monopolies at all and may discount the credibility of the other provisions of the law. On the other hand, prohibiting administrative monopolies in the new antitrust law will almost certainly yield few successes in the near future, given China's current economic and political realities. Monopolistic problem in China cannot be solved by only making a antitrust law. Adiministrative monopolistic problem including the cultural, historic, ethical, structural factors includes a adjustment of interests between the central government and local government. The fundamental solution must be made in the dimension of the constitutional law. Only a antitrust law can be limitted because local government is both one of the political organization and economic organization in China's current system. According to the development of innovation and opening courses, China has begun an importance of economic democratization. In the case that the market problems occur, it is limitted for the enterprise to solve them in the boundary of market because administrative influence is still absolutely strong and the enterprise and government is inseperably related to each other in China. In other words, monopolic problem in a fish market is not solved by a competition principle of a fish market, itself, but a tendency depending on a political party clerk remains until now in China. Therfore in the current point that the antitrust law is established and enforced, it will be a future task that a creative application of an exclusive institution that is guaranteed an independency by a law, and also in real, and the establishment of more compositional legal economy articles.