The Antimonopoly Law, which has been in force for 11 years, ushered in its first major 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 revised draft (draft for public comments) proposed for the first time to include new forms of Internet business and substantially increase the penalty standards.
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 acted in accordance with the relevant provisions of the Consumer Protection Act, but the effect has 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.
In addition, the penalties for monopolistic acts for trade associations are 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.
Shi Jianzhong, vice-president of China University of Political Science and Law, argued that the clause added to the cost of breaking the law.\"If an agreement was reached in the past year by an operator who did not have sales, there was actually no need to assume any legal liability and was actually circumventing the legal provisions. This time, even if there were no sales in the previous year, a fine of less than 50 million yuan would be imposed if a monopoly agreement was reached, which would increase or increase the illegal cost of a monopoly agreement.
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.