我国反垄断法中罚款裁量因素的结构性功能重塑

In terms of legal liability, the first revision of the Anti-monopoly Law of the People's Republic of China focuses on refining the types of liabilities but does not pay enough attention to the measurement of penalty. After the building of the responsibility system, it should be put on the agenda to make the legal liabilities more science-based and rational. The anti-monopoly penalty system contains highly complex structure and procedures, in which basic discretionary factors should play a preliminary adjustment and balancing role, while policy-based discretionary factors should play a rational adjustment and balancing role. However, empirical analyses of 42 illegal monopoly cases investigated since 2021 in China showed that the discretionary factors of anti-monopoly penalty in China exhibited a structural disfunction, which to some extent failed to offer guidance and reference for other cases. The main reason for this problem is the ambiguity of statutory discretion factors and the lack of transparency in the “single-step” discretion process. Therefore, it is necessary to reshape the structural function of anti-monopoly penalty discretion factors from three aspects: clarifying the applicable procedures of discretionary factors, refining the categories of statutory discretion factors, and determining the impact of discretionary factors on the penalty ratio.