Original title: oppose unfair competition and promote high quality development
Author: Wang Xianlin
Recently, the central government has constantly put forward and emphasized the task of Combating Unfair Competition under the new situation. In the proposal of the CPC Central Committee on formulating the fourteenth five year plan for national economic and social development and the long-term goal of 2035 adopted by the Fifth Plenary Session of the 19th CPC Central Committee, the main goal of economic and social development in the fourteenth Five Year Plan period includes “more perfect fair competition system” and the part of “comprehensively deepening reform and building a high-level socialist market economic system” It is emphasized that “we should strengthen the judicial enforcement of anti-monopoly and anti unfair competition, and enhance the comprehensive market supervision ability.”
In November 30, 2020, the Political Bureau of the CPC Central Committee held twenty-fifth collective studies on strengthening the work of intellectual property protection in China. General Secretary Xi Jinping stressed the importance of strengthening legislation in the field of geographical indications and trade secrets, and “perfecting relevant laws, regulations and policies and measures for intellectual property rights anti monopoly and fair competition”. At the meeting of the Political Bureau of the CPC Central Committee on December 11, 2020, it was proposed for the first time to “strengthen anti-monopoly and prevent disorderly expansion of capital”.
The central economic working conference, which ended on December 18, 2020, identified “strengthening anti-monopoly and preventing disorderly expansion of capital” as one of the key tasks in 2021, and clearly pointed out that “anti-monopoly and anti unfair competition are the inherent requirements for improving the socialist market economic system and promoting high-quality development”, “we should strengthen regulation, enhance regulatory capacity, and resolutely oppose monopoly and unfair competition” When it comes to competitive behavior. ”
The central political and legal work conference held on January 9, 2021 also proposed “strengthening the anti-monopoly and anti unfair competition law enforcement justice”. This shows that the work of anti unfair competition has received unprecedented attention in our country, which is not accidental, but the internal requirement of promoting the effective market and the promising government to better combine and then promote the high-quality economic development.
1、 Market competition mechanism plays an irreplaceable positive role, but it needs to be maintained
The core issue of China’s economic system reform is to deal with the relationship between the government and the market so that the market can play a decisive role in the allocation of resources and the government can play a better role. The decisive role of the market is to let the law of value, the law of competition and the law of supply and demand play a decisive role in the allocation of resources. The law of competition is realized through the mechanism of market competition to encourage the advanced and whip the backward.
As the most basic operation mechanism of the market, competition plays a positive role in many aspects, such as the rational allocation of scarce resources, the promotion of economic and technological progress, the promotion of reasonable income distribution, the full protection of consumers’ rights and interests, the protection of people’s economic freedom and the creation of an economic basis for social equality. However, competition will also produce some negative effects. In addition to survival of the fittest may cause enterprise bankruptcy, unemployment of workers, disparity between the rich and the poor and other social problems, as well as blindness may cause waste of resources and economic turmoil and recession, only as far as the process of market competition itself is concerned, it will often produce the power to destroy competition, mainly as a “by-product” of market competition Monopoly and unfair competition. The former makes the competition unable to develop, while the latter makes the competition develop disorderly. Whether it is monopoly or unfair competition, the positive role of competition cannot be brought into full play, the normal order of the market is destroyed, and the vitality of the economy is restrained. Therefore, competition, as one of the core contents of the market mechanism, the invisible hand, has an irreplaceable positive effect, but it also brings some negative consequences, so it needs the government’s visible hand to maintain.
In modern society, the maintenance of market competition mechanism is mainly manifested in the formulation and implementation of corresponding policies and laws to guide, regulate and regulate market competition behavior, so as to minimize the possible negative impact of competition. Among them, in order to solve the problems of monopoly and unfair competition brought by competition, it is necessary to formulate and implement competition law, including “anti monopoly law”, “Anti Unfair Competition Law” and other relevant legal systems. The purpose is to maintain the normal market competition order, and ultimately to make the market mechanism play a better role.
In the process of China’s reform and opening up, with the introduction of market competition mechanism and its more and more important role and gradual integration into the world economic system, the corresponding requirements of anti-monopoly and anti unfair competition have emerged in China, and the corresponding competition legal system has gradually formed, mainly the Anti Unfair Competition Law, which was formulated and implemented in 1993 and revised twice in 2017 and 2019 The competition law of the people’s Republic of China and the antimonopoly law enacted in 2007 and implemented in 2008.
Generally speaking, China has established the basic framework of competition legal system, and has laws to abide by in anti-monopoly and anti unfair competition, but it also needs to be adjusted and improved with the new situation of market development.
2、 Although anti unfair competition and anti-monopoly have their own specific goals and characteristics, they are indispensable for maintaining normal market competition order and promoting the healthy development of market economy
As two important ways to maintain the market competition mechanism, anti unfair competition and anti-monopoly and their corresponding legal systems have their own specific objectives and characteristics. In addition to the differences in the background and legal sources, regulation methods and liability forms, the differences between the two are mainly manifested in the purpose and focus of regulation.
The purpose of anti unfair competition is to prevent and eliminate unfair competition, encourage and protect fair competition; the purpose of anti-monopoly is to prevent insufficient competition. Both of them are the legal tools to maintain the fair competition market environment and have the same orientation and positive role in protecting the market competition mechanism. They both regulate the market competition behavior and are conducive to safeguarding the legitimate rights and interests of operators and consumers. Both of them are essential for maintaining the normal market competition order and promoting the healthy development of market economy. To fight against unfair competition and maintain the order of fair competition, it is necessary for anti-monopoly to play its role on the condition that competition can be carried out freely; to maintain the order of free competition, anti-monopoly needs the environment of fair competition and the function of anti unfair competition. Therefore, in some countries or regions, the merger legislation of anti unfair competition and anti-monopoly is even adopted and implemented by the same law enforcement agency.
3、 In the new situation, we should strengthen the basic position of competition policy, strengthen anti unfair competition law enforcement and justice, and promote the high-quality development of China’s economy
There are many forms of unfair competition behaviors, such as market confusion, commercial bribery, false or misleading commercial propaganda, infringement of commercial secrets, unfair prize sales, commercial defamation, and Internet unfair competition behaviors including “one of two” implemented by technical means. These behaviors not only directly damage the legitimate rights and interests of other operators and consumers, but also distort and destroy the normal market competition mechanism, worsen the business environment, and ultimately affect the high-quality economic development. As the basic law to maintain the market economic order, the purpose of the anti unfair competition law is to prohibit unfair means such as violating business ethics to engage in market competition, maintain the normal market competition order, safeguard the interests of consumers and social public interests, so as to promote high-quality economic development.
In the first two years after the promulgation of the new anti unfair competition law, the whole country carried out a hundred day action to rectify the disorder in the “health care” market, and strengthened the investigation and punishment of unfair competition in key areas. A total of 23500 cases and 1.329 billion yuan of fines were investigated and punished. In particular, in September 2020, the State Administration of market supervision imposed administrative penalties on 45 companies, including lucky coffee (China) Co., Ltd. and lucky coffee (Beijing) Co., Ltd., for false trading and unfair competition, with a total amount of 61 million yuan, which had a great social impact.
Obviously, anti unfair competition is of great significance for creating and maintaining a market-oriented, rule of law and international business environment and promoting high-quality economic development.
In recent years, the relevant resolutions and decisions of the Party Central Committee and the State Council have repeatedly stressed “strengthening the basic position of competition policy” and called for “strengthening the anti unfair competition law enforcement and justice”. Therefore, it is necessary to further strengthen the enforcement of Anti Unfair Competition Law in combination with some contradictions and problems existing in the implementation of the revised anti unfair competition law.
First, further improve and refine the anti unfair competition legal system. At present, the anti unfair competition law is still relatively principled and general, and its operability is not strong in many aspects. The relevant supporting regulations and normative documents have not fully kept up with the work of “legislative reform, abolition and interpretation”. Therefore, we need to strengthen the operability of the anti unfair competition law through the relevant supporting regulations, judicial interpretations and normative documents, and promote the further revision and improvement of the anti unfair competition law itself.
Second, strengthen the construction of anti unfair competition law enforcement agencies under the unified market supervision pattern. Under the current situation of unified market supervision, China’s anti unfair competition law enforcement is facing many difficulties. Therefore, we need to take corresponding policies and measures to strengthen the construction of China’s anti unfair competition law enforcement agencies, mainly including: optimizing the establishment of anti unfair competition law enforcement agencies, increasing the staffing; reasonably allocating the anti unfair competition law enforcement power within the market supervision department; taking effective measures Practical measures should be taken to strengthen the construction of law enforcement capacity against unfair competition.
Third, establish and strengthen the coordination mechanism of anti unfair competition work, and solve the problem of multiple law enforcement. The revised “Anti Unfair Competition Law” stipulates that a coordination mechanism for anti unfair competition work should be established at the State Council level, and its responsibility is to study and decide major anti unfair competition policies, and coordinate and deal with major issues of maintaining market competition order. In November 2020, the State Council agreed to establish an inter ministerial joint meeting system for anti unfair competition, which is composed of 17 departments and led by the General Administration of market supervision. This is conducive to further strengthening the organization, leadership and coordination of anti unfair competition work, and better studying and solving the major problems of maintaining the order of competition. In the future, we can consider to link up and coordinate with the antimonopoly Committee of the State Council, or even consider to integrate it, establish the fair competition committee of the State Council, and coordinate the antimonopoly and anti unfair competition work in a unified way.
At the same time, the revised anti unfair competition law still retains the clause that “if the law and administrative regulations stipulate that other departments should investigate and deal with it, the provisions shall be followed”. As a result, the phenomenon of concurrence between the law and other laws and regulations is still serious, and the subject is unclear and the responsibility is unclear. Therefore, it is necessary to solve the problem of multiple enforcement of the anti unfair competition law through legal amendment to ensure law enforcement The unity and efficiency of the system.
Fourth, while strengthening the anti unfair competition law enforcement, strengthen the cultivation of competition culture and promote the development of competition compliance. The publicity and popularization of anti unfair competition law is of great significance to improve people’s legal awareness of anti unfair competition and cultivate the competition culture of the whole society. In addition to the self-discipline of the operators and the government, it also needs external promotion, especially the publicity and competition advocacy activities of the anti unfair competition law. It is suggested to promote the development of anti unfair competition compliance guidelines at the national and local levels in the future.
(the author is a distinguished professor of Shanghai Jiaotong University, director of the competition law and Policy Research Center, member of the expert advisory group of the anti monopoly Commission of the State Council, and vice president of the Economic Law Research Association of China law society.)