1. Differences in adjustment objects
The adjustment objects of the Anti-Unfair Competition Law are generally small and medium-sized enterprises. Article 2 of the Anti-Unfair Competition Law stipulates: Operators referred to in this law refer to legal persons, other economic organizations and individuals engaged in commodity operations or profitable services. The operators here are general market entities, mainly including but not limited to small and medium-sized enterprises.
The targets of adjustments to antitrust laws are generally large monopolies. It can be seen from Article 2 of the Anti-Monopoly Law that only enterprises of considerable size may abuse their market dominance to eliminate or restrict competition, while ordinary small and medium-sized enterprises simply do not have the funds and technical strength to do this.
2. Differences in regulated behaviors
The behaviors regulated by the Anti-Unfair Competition Law include unfair competition behaviors and some monopolistic behaviors. Since the Anti-Unfair Competition Law was promulgated and implemented before the Anti-Monopoly Law was enacted, some monopolistic behaviors naturally became behaviors regulated by the Anti-Unfair Competition Law. For example: Article 6 of the Anti-Unfair Competition Law: Public utility enterprises or other operators with a monopoly position according to law shall not restrict others from purchasing the goods of their designated operators in order to exclude other operators from fair competition. This provision actually refers to restricting competition. Article 7 of the law targets administrative monopoly: the government and its departments shall not abuse administrative power to restrict others from purchasing the goods of its designated operators or restrict the legitimate business activities of other operators. The government and its departments shall not abuse administrative power to restrict foreign goods from entering the local market, or the flow of local goods to foreign markets. In addition, Article 11 of the Law prohibits low-price sales, Article 12 prohibits tying or attaching other unreasonable conditions, and Article 15 of the Law prohibits collusive bidding should also be regarded as adjustments to monopolistic behavior.
Setting some anti-monopoly provisions in the Anti-Unfair Competition Law is based on the actual needs faced before the promulgation of the Anti-Monopoly Law, especially to adjust certain monopolistic behaviors that have been highlighted. Among them, the provisions of Articles 6, 11 and 12 all fall within the scope of abuse of market dominance under foreign anti-monopoly laws; the provisions of Article 15 are a type of foreign anti-monopoly law agreements that restrict competition. It can be seen from this that the anti-monopoly provisions involved in my country’s Anti-Unfair Competition Law are preliminary and scattered.
The currently promulgated antitrust law only regulates monopolistic behavior. In terms of legislative technology and logical structure, it is more complete, independent and self-contained, instead of being as confusing and overlapping as the Anti-Unfair Competition Law more than 10 years ago, which reflects the scientific nature of the legislation.
3. Differences in the characteristics of illegal acts
Anti-unfair competition laws mostly cover open acts of unfair competition, and these acts are easy to identify and identify. For example: counterfeiting other people’s registered trademarks, false advertising, infringement of trade secrets.
Anti-monopoly law: Monopolistic behavior is mostly hidden and difficult to define. Moreover, it must be comprehensively analyzed based on factors such as market power and proportion. As Article 17, Paragraph 2 of the Law stipulates: The term "market dominance" as used in this Law refers to the ability of an operator to control the price, quantity, or other trading conditions of commodities in the relevant market, or the ability to hinder or influence other operators from entering the relevant market. Market position of market capabilities.
4. Differences between different behavioral regulatory standards
Anti-unfair competition law: The standard for confirming unfair competition behavior is the business ethics of honesty and trustworthiness in the civil law. Article 2 of the Law stipulates: Operators should abide by the principles of voluntariness, equality, fairness, good faith and recognized business ethics in market transactions.
Antitrust Law: When confirming monopoly or restricting competition, factors such as whether the company has market power, whether it abuses its rights, and the impact of business mergers on the market structure must be considered. The standards for its regulation involve non-moral judgments. economic, statistical and other technical factors. Article 18 of the Law stipulates: To determine that an operator has a dominant market position, the following factors shall be based on: (1) The operator’s market share in the relevant market and the competition situation in the relevant market; (2) The operator controls the sales market or The ability of the raw material procurement market; (3) The financial resources and technical conditions of the operator; (4) The degree of dependence of other operators on the operator for transactions; (5) The difficulty for other operators to enter the relevant market; ( 6) Other factors related to the determination of the operator’s market dominance.
Article 27: When reviewing the concentration of business operators, the following factors shall be considered: (1) The market share of the operators participating in the concentration in the relevant market and their control over the market, (2) The market concentration degree of the relevant market (3) The operators The impact of concentration on market entry and technological progress; (4) The impact of concentration of business operators on consumers and other relevant operators; (5) The impact of concentration of business operators on the development of the national economy; (6) The anti-monopoly law enforcement agency of the State Council believes that it should Consider other factors affecting market competition.
5. The difference between the objects of protection and their rights of action
Anti-Unfair Competition Law: The parties infringed by unfair competition are specific and have full rights of action, and can directly appeal to the judicial authorities Prosecution. Article 20 of the Law clearly stipulates this.
Anti-monopoly law: There may not necessarily be parties harmed by monopolistic behavior. Even if there are victims, they are abstract, vague, and uncertain. There is no clear provision for the right to sue. However, Article 38 of the law gives units and An individual’s right to report.
Although both are aimed at protecting the legitimate rights and interests of competitors and the interests of the public, the focus of protection is different. The former is the injured party, while the latter maintains the market order of free competition and fair competition.
6. Differences between law enforcement agencies
Article 3 of the Anti-Unfair Competition Law stipulates: The industrial and commercial administrative departments of the people’s governments at or above the county level shall supervise and inspect unfair behaviors; legal, administrative Supervision and inspection by other departments stipulated in laws and regulations shall be in accordance with their provisions. It can be seen from this that the law enforcement agencies of the Anti-Unfair Competition Law follow the existing administrative law enforcement system, which is the industrial and commercial administration agencies at or above the county level. Of course, other departments stipulated in laws and administrative regulations are not excluded. From the level of the establishment of law enforcement departments, It looks like a single layer system.
The Anti-Monopoly Law establishes a new set of specialized law enforcement agencies and implements a two-tier leadership system. The anti-monopoly law enforcement agencies work under the leadership of the Anti-Monopoly Committee of the State Council. Article 9 of the Law stipulates: The State Council shall establish an Anti-Monopoly Committee to be responsible for organizing, coordinating and guiding anti-monopoly work. Perform the following duties. Article 10 of the Law stipulates: The institutions responsible for anti-monopoly law enforcement specified by the State Council shall be responsible for anti-monopoly law enforcement in accordance with the provisions of this Law. The anti-monopoly law enforcement agency of the State Council may, based on work needs, authorize the corresponding agencies of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government to be responsible for relevant anti-monopoly law enforcement work in accordance with the provisions of this Law. It can be seen from the above provisions that the law enforcement agencies established by this law not only implement a two-tier leadership system but also involve many agencies, which may overlap or overlap.
7. Differences in principles followed in the scope of application
Anti-Unfair Competition Law: The exception system does not apply, and all unfair competition behaviors are subject to regulation. Article 3 of the Law stipulates: People's governments at all levels shall take measures to stop unfair competition and create a good environment and conditions for fair competition. The industrial and commercial administrative departments of the people's governments at or above the county level shall supervise and inspect unfair competition; where laws and administrative regulations provide for supervision and inspection by other departments, such provisions shall apply. Article 4 of the Law stipulates: The state encourages, supports and protects all organizations and individuals to conduct social supervision of unfair competition. State agency staff shall not support or cover unfair competition practices.
Anti-monopoly law: The exception system applies, exempting some monopoly behaviors, such as state monopoly, natural monopoly, etc. Article 7 of the Law stipulates: In industries where the state-owned economy occupies a controlling position that is related to the lifeline of the national economy and national security, as well as industries in which monopolization is implemented in accordance with the law, the state shall protect the legitimate business activities of its operators, and shall monitor the operators’ business behaviors and The prices of its goods and services are supervised and controlled in accordance with the law to safeguard consumer interests and promote technological progress. Article 15: If an operator can prove that the agreement reached falls under one of the following circumstances, the provisions of Articles 13 and 14 of this Law shall not apply (neither shall be recognized as a monopoly): (1) Research and development of new technologies for the purpose of improving technology; products; (2) To improve product quality, reduce costs, increase efficiency, unify product specifications and standards, or implement specialized division of labor; (3) To improve the operating efficiency of small and medium-sized operators and enhance the competitiveness of small and medium-sized operators; (4) ) To achieve social public interests such as energy conservation, environmental protection, disaster relief, etc.; (5) To alleviate a serious decline in sales or obvious overproduction due to the economic downturn; (6) To protect foreign trade and foreign economy Legitimate interests in cooperation; (7) Other circumstances stipulated by law and the State Council.
Article 19, paragraph 2: Under the circumstances specified in the second and third paragraphs of the preceding paragraph, if the market share of any operator is less than one-tenth, it shall not be presumed that the operator has a dominant market position. Article 28: If the concentration of business operators has or may have the effect of eliminating or restricting competition, the anti-monopoly law enforcement agency of the State Council shall make a decision to prohibit the concentration of business operators. However, if the business operators can prove that the beneficial impact of the concentration on competition is significantly greater than the adverse impact, or it is in the interests of the public, the anti-monopoly law enforcement agency of the State Council may make a decision not to prohibit the concentration of business operators.
8. Differences in focus
Anti-unfair competition law: focuses on protecting the rights of bona fide operators and the interests of specific micro entities to maintain the order of competition.
Antitrust Law: Paying attention to market structure and share, ensuring the right of enterprises to participate in competition freely, improving economic efficiency and consumer social welfare, is to protect the overall interests of the country and society from a macro perspective.
References:
1 "Economic Law" edited by Wang Xiaoye, Social Sciences Literature Press, 2005 edition.
2 "Competition Law" edited by Zhong Mingzhao, Law Press, 2005 edition.
3 "Competition Law Tutorial" edited by Shao Jiandong, Intellectual Property Press, 2003 edition.
4 Wang Xiaoye, "The Framework of my country's Anti-Monopoly Law Legislation", published in "Legal Research", Issue 4, 1996.
5 "Economic Law" edited by Li Changqi, China University of Political Science and Law Press, 1999 edition.
6 Sheng Jiemin, "On the Scope of Adjustments to my country's Antitrust Law," published in "Law Journal" Issue 3, 2005.