중국의 경쟁당국과 지방정부의 법집행

Abstract

The Chinese Anti-Monopoly Law (AML) established an administrative and judicial framework that is conceptually similar to that of other countries’ competition law systems. However, unlike other countries, China divided responsibility for competition law among three different administrative agencies, as well as the judiciary. China also established a higher-level body, the Anti-Monopoly Commission (AMC), to oversee and coordinate the administration of the AML, but its power is unclear and its involvement seems intermittent. These unusual institutional features of the AML reflect its dual role as a competition law and a vehicle for industrial policy. The three Anti-Monopoly Law Enforcement Authorities (AMEAs) responsible for enforcing the AML are the Ministry of Commerce (MOFCOM), the National Development and Reform Commission (NDRC), and the State Administration for Industry and Commerce (SAIC). This tripartite division of enforcement responsibilities tends to lead to (i) dispersion of competition law expertise among several different agencies; (ⅱ) exposure of competition law enforcement personnel to the institutional pressures of the larger agency to which they belong, which—particularly for NDRC—include a bias toward domestic industrial policy and price caps; and (ⅲ) heightened risk of inconsistent interpretation and application of the AML. MOFCOM is China’s most outward-facing economic agency, with responsibility for most aspects of China’s international trade and economic policy, including foreign trade and investment policy, WTO affairs, and trade remedies. Under the AML, MOFCOM’s Anti-Monopoly Bureau (AMB) is responsible for reviewing proposed “concentrations”—i.e., mergers, acquisitions, and the formation of joint ventures (whether full-function or not). NDRC is the largest AMEA, and has conducted most non-merger-related investigations under the AML to date. NDRC’s predecessor agency, the State Planning Commission, previously set production targets and prices in China’s centrally planned economy. Today’s NDRC continues to play a broad, albeit less command-and-control, role as a macroeconomic administrator and regulator, responsible for formulating and implementing government policies in specific sectors of the economy. SAIC, sometimes referred to as China’s “economic police,” has a more diffuse and decentralized structure than NDRC or MOFCOM, with enforcement activity taking place at the provincial and local levels through local Administrations for Industry and Commerce. The authority for enforcement of the Anti-monopoly Law under the State Council may, in light of the need of work, empower the appropriate departments of the people’s governments of provinces, autonomous regions or municipalities directly under the Central Government to take charge of relevant enforcement of the Anti-monopoly Law in accordance with the provisions of Anti-monopoly Law.