The so-called "first anti-monopoly cases" occurring in many places recently have once again provoked people's reflections on the Anti-Monopoly Law.
Termed as the "charter of free enterprise", the Anti-Monopoly Law performs a key role in the establishment, maintenance and operation of the country's competition mechanism and the legal environment for competition.
Now let's have a look at how the eight-chapter law is implemented in the environment of the country's market economy.
What the Anti-Monopoly Law aims to protect is a fair competition order but not specific market competitors. Through its protection of the established competition pattern, the law aims to help the country realize maximum economic efficiency, promote technological innovation and improve the wellbeing of the massive number of ordinary consumers.
With such a goal for the law, it is impossible for the law enforcement authorities to try to protect State-owned enterprises against foreign-funded ones in their market competition.
A lot of issues and many relationships should be taken into consideration in the implementation of the law. These include issues such as how to best protect efficiency, innovation and the interests of consumers and how to deal with the relationship between the short-term and long-term interests well. How to enforce the Anti-Monopoly Law will therefore be a difficult task facing the authorities compared with other laws.
At the same time, its enforcement also makes a high professional demand on its enforcers. But the special nature of the law should not become a stumbling block for its effective implementation. We should improve and enrich the law by using some reasonable methods, such as making more detailed definitions of its clauses, so that the law really takes root in the Chinese land.
China has achieved a leap forward in the field of economic legislation in recent years. But the country also faces the problem of making its numerous laws more developed and mature. The Anti-Monopoly Law is also in a similar process.
We should not expect that the Anti-Monopoly Law could bring a sea change to the country's market economic environment in the early stage of its implementation, although the law has forged for different market participants the frame for a free and fair competition.
What we should do is to find out how to make the law more effectively solve some specialized problems under the current legal framework.
First, under the established framework and system of the Anti-Monopoly Law, the country should lay down some corresponding administrative stipulations, department rules and official guidelines in a more detailed manner. These should enrich and perfect the content and system that the law badly needs to fulfill its objectives.
Second, more analyses of more cases should be applied in its implementation. This has also become a trend in many countries while practicing the Anti-Monopoly Law.
Third, the country should attach enough importance to the cultivation of professional anti-monopoly law talents and to forming teams of such people. Other tasks include attaching importance to the appointment and training of law-enforcers, judges, lawyers, and relevant economists, as well as the installment and operation of the executive commission of experts. Interactions among these legal teams will decide the effect of the law's implementation and will push the Anti-Monopoly Law forward to a maximum.
The current enforcement department of the Anti-Monopoly Law is composed of personnel from the National Development and Reform Commission, the State Administration of Industry and Commerce and the Ministry of Commerce, which respectively handle price manipulation, market manipulation, and excessive concentration of enterprises. The anti-monopoly commission now undertakes coordination among the three departments.
However, there possibly exist some functions overlapping among the three State departments because of such a system. This will inevitably result in a vacuum in the enforcement of the law.
How to coordinate among the three functional departments also poses a pressing challenge to the implementation of the Anti-Monopoly Law.
To make it a better job, the three departments should first establish full communication on the law-enforcement standards and on their specific responsibilities. Such an arrangement will reduce the waste of administrative resources and prevent a vacuum from developing in the enforcement of the law.
When the three departments have differences about the enforcement of the law, the anti-monopoly commission should play the final arbiter.
Effective implementation of the Anti-Monopoly Law still faces an uphill task. But we should not give up high expectations for the "charter of free enterprise" only because of some difficulties.
The author is a professor at the University of International Business and Economics
(China Daily September 11, 2008)