Project Details
Funding Scheme : General Research Fund
Project Number : 17606518
Project Title(English) : Anti-Monopoly Law Enforcement in China 
Project Title(Chinese) : 反壟斷法之執行 
Principal Investigator(English) : Dr Cheng, Kin Hon Thomas 
Principal Investigator(Chinese) :  
Department : Department of Law
Institution : The University of Hong Kong
Co - Investigator(s) :
Panel : Humanities, Social Sciences
Subject Area : Social and Behavioural Sciences
Exercise Year : 2018 / 19
Fund Approved : 594,100
Project Status : On-going
Completion Date : 30-6-2022
Abstract as per original application
With the adoption of the Anti-Monopoly Law (“AML”) in 2007, China officially joined the global competition law community. In the space of ten years, China has quickly established itself as one of the most prominent competition law jurisdictions, especially as far as merger review is concerned. However, the path to prominence has been rocky at times. The country has been accused of allowing political bias or protectionist instinct to seep into its AML enforcement. Foreign observers have argued that China has pursued industrial policy objectives through its merger review enforcement in particular. While political bias is difficult to prove without access to closed-door deliberations of the enforcement authorities, it would be helpful to examine whether China’s enforcement record is consistent with established competition law principles. To the extent that cases have been decided in accordance with such principles, then charge of political bias becomes less damaging. Another issue that is worth examining in AML enforcement thus far is the dual track enforcement system consisting of the enforcement authorities and the courts. Due to the lack of discovery procedures in Chinese courts, the ability of the courts to handle certain cases, such as cartels, is necessarily limited. Therefore, the Chinese courts are likely to focus on cases in which availability of evidence, at least evidence on the existence of the conduct, is less of an issue, namely vertical agreements and abuse of dominance cases, especially the ones that the authorities have refused to take. This is potentially problematic because the enforcement authorities and the courts have adopted different approaches to the same conduct, such as resale price maintenance. Therefore, this proposed project will examine this issue and put forward possible solutions. Lastly, this proposed project examines whether China needs a contextualized approach to competition law enforcement that takes into account its somewhat unique domestic socio-economic circumstances. These include the need to incorporate development considerations, especially technology catch-up, and reflect the complex and omnipresent interaction between the state and markets. A contextualized approach will in turn affect China’s treatment of the intellectual property-competition interface, merger review, conduct enforcement, and regulation of abuse of administrative monopoly. This proposed project will suggest ways in which the above four areas of AML enforcement will need to be adjusted as a result of the aforementioned socio-economic circumstances if a contextualized approach is deemed more appropriate for China.
隨著2007年反壟斷法(“反壟斷法”)的通過,中國正式加入了全球競爭法界。在十年的時間裡,中國迅速成為最重要的競爭法司法管轄區之一,特別是就合併審查而言。然而,一切並非一帆風順。該國被指控允許政治偏見或保護主義滲透其反壟斷法執法。外國觀察家認為,中國通過合併審查實施了產業政策目標。雖然如果沒有執法機關的閉門會議紀錄,很難證明政治偏見,那麼檢查中國的執法記錄是否符合既定的競爭法原則將會有所幫助。如果案件是根據這些原則決定的,那麼對政治偏見的指責就不確立了。 反壟斷法執法中另一個值得研究的問題是由執法當局和法院組成的雙軌執法系統。由於中國法院缺乏搜證程序,法院處理某些案件(如卡特爾)的能力必然受到限制。因此,中國法院可能會把重點放在縱向協議和濫用支配地位的案件。採取。這可能產生問題,因為執法機關和法院對同一行為採納了不同的態度,例如維持轉售價格。因此,該項目將研究這一問題並提出可能的解決方案。最後,這項目會考察中國是否需要考慮到其獨特的社會經濟環境執法。其中包括需要納入發展考慮因素,特別是科技發展,並反映國家與市場之間複雜的關係。
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