Beijing News (Reporter Xu Wen)11 years of implementation of the \"Antimonopoly Law\" ushered in the first \"overhaul. Since January 2, the State Administration of Market Supervision has publicly solicited views on the draft amendments to the Anti-monopoly Law, which ends on January 31,2020.
The current Anti-monopoly Law was officially implemented on August 1,2008, and it was revised for the first time in 11 years. Compared with the old law, the draft revised anti-monopoly law (draft for public comments) proposed for the first time to include new forms of internet business and substantially increase the penalties.
The current Anti-monopoly Law clearly stipulates that an operator with a dominant market position shall not abuse its dominant market position and exclude or restrict competition. To determine that the operator has a dominant market position, it should be based on its market share, the relevant market competition situation, the operator's ability to control the sales market or the raw material purchase market and other six factors.
In addition to the foregoing general basis for application, the draft new request for comment: the determination that the Internet operators have a dominant market position should also take into account network effects, economies of scale, lock-in effects, the ability to grasp and process relevant data and other factors.
Liu liujunhai, director of the institute of commercial law research at the people's university of china, told xinjing newspaper that when the \"old law\" was introduced, many internet companies had not yet become a climate, let alone abuse of market dominance. For more than a decade, the Internet has become more and more important in people's lives. However, for a long time, internet companies have abused their monopoly advantage, and the \"overlord clause\" has been upgraded day by day, violating consumers'right to know, choose and trade fair.
“In the past, we have only followed the relevant provisions of the Consumer Protection Act, but the results have been poor because the true'focus'has not been found." Liu Junhai believes that the draft for comments aimed at the core features of the Internet and the way to profit, such as the network effect, lock-in effect, big data collection application and other factors.
He further explained that such as the \"lock-in effect \", where users need to provide a series of real information such as id number, bank account number and so on when registering on a large internet platform, while users are worried about whether the information is safe for internet companies, but at the same time cannot be separated from the platform, shopping, payment, travel need it, this dependence itself is also lock-in effect.
In his opinion, the draft gives several indicators that Internet companies have a dominant position in the market, but also for the law enforcement that Internet companies abuse the dominant position in the market.
“The" Old Law "stipulates that any business operator who, in violation of the provisions of this Law, enters into or implements a monopoly agreement, shall be ordered by the anti-monopoly law enforcement agency to stop the illegal act, confiscate the illegal gains and impose a fine of not less than one percent but not more than ten percent of the sales volume of the previous year.
The drafts for soliciting opinions stipulate that if an operator, in violation of the provisions of this Law, enters into or implements a monopoly agreement, the anti-monopoly law enforcement agency shall order it to stop the illegal act, confiscate the illegal gains and impose a fine of not less than one percent but not more than ten percent of the sales volume of the previous year; and a fine of not more than 50 million yuan may be imposed on an operator who has not sold the previous year or has not yet implemented the monopoly agreement reached.
The penalties for monopolistic behaviour in trade associations are also more stringent, with the maximum penalty increased from $500,000 to $5 million. The \"Old Law\" stipulates that anti-monopoly law enforcement agencies may impose a fine of not more than 500,000 yuan on trade associations that, in violation of the provisions of this Law, organize operators in their trade to reach a monopoly agreement.
If a trade association violates the provisions of this Law by organizing a monopoly agreement, the anti-monopoly law enforcement agency shall order it to stop the illegal act and may impose a fine of not more than 5 million yuan.
The reporter noted that the draft fair competition review of the new articles. For example, article 9 of the draft for comments provides that the State shall establish and implement a fair competition review system, regulate the administrative conduct of the Government, and prevent the introduction of policy measures to exclude and restrict competition.
Article 42 It is mentioned that administrative organs and organizations with functions of managing public affairs authorized by laws and regulations shall conduct fair competition examination in accordance with relevant regulations of the state when formulating provisions concerning economic activities of market subjects.
It is also the first time at the legal level that a fair competition review system has been included. Liu believes that the fair competition review into the law is for the local government to draw a \"red line.\"
The fair competition review system requires the Government to review policy measures in relation to the economic activities of the main market players with the criteria of restricting competition and to decide whether the policy can be introduced or selected as an alternative. In short, fair competition censorship is a system to guard against administrative monopolies to regulate government behavior and prevent government policies to exclude and restrict competition.
As early as June 2016, in response to local protection, regional blockade, illegal preferential policies and other phenomena, the State Council issued the \"opinions on establishing a fair competition review system in the construction of the market system \". Since then, the fair competition review system has been rolled out throughout the country.
Reporters noted that in recent years, many administrative departments have been intensively notified by the State Administration of Market Supervision because of abuse of power to exclude and restrict competition, in violation of fair competition review regulations. For example, according to the State Administration of Market Supervision, the former Changsha Municipal Health and Family Planning Commission issued a notice on strengthening funeral services in hospital morgues in 2016, disguised as the designated Ming Yangshan Funeral Home as the sole funeral service. The Hunan Provincial Bureau of Industry and Commerce requested it to conduct a fair competition review of the contents of the notice, and then the former Changsha Health and Family Planning Commission abolished the above documents and issued new ones.
At present, the fair competition review system has been basically established throughout the country. By the end of February 2019, the State Council departments, provincial governments,98 percent of the municipal governments and 92 percent of the county-level governments had carried out the review, with a total of 430,000 new documents being reviewed nationwide, said Gan Lin, deputy director of the State Administration of Market Supervision at a briefing at the State New Office in April 2019.
Gan Lin, deputy director of the State Administration of Market Supervision, said at the press conference that in the past ten years, China has cracked down on monopoly according to law. Up to the end of October 2018, a total of 165 cases of monopoly agreement, such as ro-ro cargo international maritime enterprise case, Shanxi electric power case and so on,55 cases of abuse of market dominance, such as the case of Li Le case, were investigated and dealt with, with a cumulative fine of more than 11 billion RMB. Practice has proved that through the continuous strengthening of anti-monopoly law enforcement, promote the formation of a unified and open, orderly competition market system.
At the same time, the implementation of the Anti-monopoly Law protects the legitimate rights and interests of consumers and operators. Over the past decade, we have dealt severely with price monopolies in areas such as automobiles, gas, electricity, water supply, telecommunications, gold ornaments, milk powder and other areas of people's livelihood. We have carried out special rectification of public utility restrictions on competition and monopoly practices, investigated and dealt with cases of abuse of administrative power in areas such as transportation, medicine, electricity, education, finance, insurance and other areas of people's livelihood.
At the press conference, mr gan revealed that the anti-monopoly law is about to be revised. He pointed out that with the rapid economic and social development of our country and the change of global economic environment, some of the provisions of the current anti-monopoly law cannot fully meet the needs of the present and future,\" in the process of revision and research, we should focus on solving the most urgent problems encountered in the practice of law enforcement \".