中國行政壟斷的法律治理 – 以行政壟斷合理性與合法性的分離為視角

Abstract

Strengthening legal governance of administrative monopoly is of vital significance for protecting fair market competition and improving economic operation efficiency. This is particularly true in China where great efforts have been made to promote socialist market economy.

Chapter V of the Anti-Monopoly Law of the People's Republic of China (hereinafter referred to as the "Anti-Monopoly Law") specially sets forth provisions on abuse of administrative power to eliminate or restrict competition. Therefore, it is generally accepted by the academic circle that administrative monopoly is a kind of monopoly strictly prohibited by law. in other words, administrative monopoly is illegal. However, administrative monopoly, which operates as a kind of public power, and especially as a kind of administrative power, has unnegligible value for protecting the interest of consumers and the public. That is, there is reason for the existence of administrative monopoly. How to coordinate the relationship between legality and reasonableness of administrative monopoly is the key issue to tackle in legal governance of administrative monopoly in China.

To coordinate the relationship between legality and reasonableness of administrative monopoly, it is necessary to learn objectively the state of separation between the legality and reasonableness of administrative monopoly. Therefore, from the perspective of separation between the legality and reasonableness of administrative monopoly, this article expounds its core themes after comprehensively analyzing the incomplete correspondence between the reasonable/unreasonable administrative monopoly and the legal/illegal administrative monopoly. This article consists of five chapters.

Chapter I, Rethinking on Administrative Monopoly. Administrative monopoly is a kind of monopoly established on public power. In essence, administrative monopoly operates as a kind of public power. As for its influence on social economy, administrative monopoly is reasonable in one aspect but unreasonable in the other aspect. From the empirical point of view, administrative monopoly is sometimes legal and sometimes illegal. The reasonableness of administrative monopoly is not complete corresponding to its legality. A reasonable administrative monopoly may not meet the requirements of the empirical method, while an unreasonable administrative monopoly may legally exist.

Chapter II, Basic Situation of Administrative Monopoly in China. Currently, administrative monopoly is mainly reflected by the domination of the Party and the government and is closely related to power. Specifically, it covers exclusive operation and monopoly of special commodities and services, sector monopoly, or regional monopoly. Administrative monopoly in China has a profound historical background and a close connection to the current economic management system. Administrative monopoly has a considerable impact on social and economic development in China. Negatively, it impedes free competition and impairs social benefits. Positively, it makes up for the ineffectiveness of the market and protects public interest and social justice.

Chapter III, Difficulties in and Solutions to Governance of Administrative Monopoly in China. Legal governance of administrative monopoly in China is confronted with many difficulties, including imperfect legislation, inefficient law enforcement, and incompetent judicial work. Legislation is the root of legal governance. To overcome the difficulties in governance of administrative monopoly in China, we have to, on the one hand, improve legislation and terminate sector interest, and on the other hand, strengthen the judicial work to safeguard the baseline and dignity of the rule of law.

Chapter IV, Defining the Reasonable Administrative Monopoly: Sticking to the Legislation Reservation Principle. Separation between the reasonableness and legality of administrative monopoly is in an actual state, but not an idealistic state. By following the legislation reservation principle, the consistency between the reasonableness and legality of administrative monopoly can be attained. Reasonable administrative monopoly shall only be stipulated by law, and any one not expressly stipulated by law shall be deemed unreasonable. The exemption of specific monopolies in the Anti-Monopoly Law does not work against the legislation reservation principle, but exemption in the Anti-Monopoly Law shall be restricted to a certain extent.

Chapter V, Control of Unreasonable Administrative Monopoly: Strengthening Judicial Examination. To control unreasonable administrative monopoly, it is necessary to strengthen judicial examination. On the one hand, it helps better determine the reasonableness and legality of administrative monopoly; and on the other hand, it helps achieve the unity of instrumental rationality and value rationality. Strengthening judicial examination covers the following aspects: (1) integrating provisions on administrative monopoly and determining the basis for judicial examination;(2) defining qualifications for a plaintiff and protecting the standing to sue of the victim; and (3) introducing the theory on administrative law relations and making innovations in judicial examination methods.

Based on the above discussions, this article draws the following conclusion: Reasonable administrative monopoly should be defined by law and by following the legislation reservation principle; unreasonable administrative monopoly should be restricted by judicial power through strengthened judicial examination.

Date of Award	7 Dec 2016
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Feng LIN (Supervisor)