What is competition law?

Scholars have different opinions on the definition of competition law. Some people think that competition law is not the general name of a single legal norm, but refers to an organic and unified state power control system composed of laws and norms of various departments that adjust competition relations. Some people think that competition law refers to the sum of all kinds of legal norms that take the competition relationship in commodity exchange as the adjustment object, protect competition as the main purpose, and anti-monopoly and anti-unfair competition as the core contents. Undoubtedly, these concepts have their reasonable components, but they also have obvious shortcomings. It is neither accurate nor consistent with the characteristics of law to equate law with the state power control system. Law is a code of conduct, not power. Restricting the adjustment object of competition law to competition relationship can not cover the content of competition management, but competition management relationship is the focus of competition law adjustment in various countries. Concept is the reflection of the general and essential characteristics of objective things, and it is the abstraction and generalization of the same characteristics of things. The concept of competition law must reflect its essential characteristics. According to general understanding, competition law includes anti-unfair competition law and anti-monopoly law. Unfair competition and monopoly are violations of fair competition rules in the process of market competition, which will bring harm to the market competition order. Competition law is to regulate the competition activities of market participants, create a free and fair competition environment, regulate the competition behaviors of market participants and maintain the normal competition order by investigating these behaviors, which is the most essential feature and basic task of competition law. Therefore, we can define competition law as follows: competition law refers to the general name of legal norms that regulate the competition behavior of market participants in order to maintain normal competition order. Or the traditional way of dividing the legal departments according to the adjustment objects: competition law is the general name of legal norms that adjust the competitive relationship between operators and the competitive management relationship between managers and operators in market activities. Compared with other laws, the competition law has the following characteristics: 1. Diversity of applicable objects. Competition is a kind of market behavior, which occurs between operators and aims at maximizing benefits. Competitive relationship is the right and obligation relationship between operators as the main body of equal market based on competition. Therefore, the competition law is mainly applicable to operators. But at the same time, the competition law is also applicable to some administrative organs, because the competition between operators is a spontaneous behavior, which needs to be restricted by tangible hands to avoid the waste of social resources brought about by disorderly competition. It is an important content of competition law to stipulate the rights and obligations of competition authorities. 2. Complexity of adjustment methods. Adjustment method is the concentrated expression of special principles of special legal departments. In civil legal relations, the legal status of civil subjects is equal, and neither party shall enjoy the privilege superior to the other. Therefore, the adjustment method of civil law can only be voluntary and equal; Administrative law is a legal norm to regulate administrative activities, and its adjustment method is the order and obedience of the parties. The object of competition law adjustment includes two aspects: competition relationship and competition management relationship. Among these two relationships, the former belongs to the relationship between equal subjects and the latter belongs to the relationship between unequal subjects. It is obviously impossible to adjust these two completely different relationships in a simple way. The competition law not only adjusts the horizontal relationship by means of voluntary equality, but also adjusts the vertical competitive management relationship by means of command obedience. Competitive adjustment is a mixture of passive adaptation and active competition. 3. Intersection of legal contents. Competition law has its specific adjustment object, which determines that the content of competition law has its own characteristics and relative independence. However, as an economic relationship, the competition relationship involves a wide range and is closely related to other economic relations, which leads to the relative independence of competition law in content and mutual penetration with other laws. For example, one of the typical manifestations of unfair competition is counterfeiting registered trademarks of others, which is prohibited by both the competition law and the trademark law. Another example is the false advertisement prohibited by the competition law, which is also an important part of the advertising law. Judging from the content of competition legislation in various countries in the world, it generally overlaps with civil law, trademark law, patent law, advertising law, price law, product quality law, company law and other related laws. 4. The comprehensiveness of legal liability. Establishing an effective competition mechanism and creating a fair competition environment for competitors is the premise for competition to play its positive role, while formulating corresponding laws to investigate the legal responsibility of illegal competitors is an effective guarantee for protecting legitimate competition behavior and maintaining normal competition order. Therefore, legal liability is the most important part of competition law. The legal liability for violating the competition law is a comprehensive liability, including civil liability, administrative liability and criminal liability. Civil liability is the responsibility that the actor bears to a specific competitor when his illegal competition causes losses to the specific competitor. Because the legal status of both parties is equal, this responsibility is mainly compensatory. Administrative responsibility is a sanction measure taken by the national competition authority against the violator of the competition law according to law, and it is the responsibility of the perpetrator to the country, and the punctuation of the responsibility is mainly punitive. Criminal responsibility is the criminal sanction given by the national judicial organs to the actors who seriously violate the competition legal system and constitute a crime, and it is the most severe legal responsibility that the actors should bear. The adjustment object of competition law is the adjuster of social relations, and any law adjusts certain social relations. The object of legal adjustment refers to the scope of social relations within the scope of legal norms. Competition law is a legal norm to adjust the competition behavior of market participants, so the adjustment object of competition law is the relationship and competition management relationship. Competitive relationship is a social relationship formed between equal competitors. It is a basic social relationship in the adjustment of competition law, which is not only extensive, but also the premise and foundation for the occurrence of competition management relations. Without competition, there can be no competition management relationship. Competition relations include legal competition relations and illegal competition relations, both of which are the adjustment contents of competition law. Some scholars point out that there are two forms of market relations: one is in line with the competition mechanism; Second, it violates the competition mechanism. In their view, when market subjects pursue the maximization of individual interests, their chosen behavior violates the competition mechanism and violates the overall interests of society, which is denied and prohibited by the inherent value of competition law. Therefore, only when an act has the characteristics of unjustly pursuing individual interests and destroying the competition mechanism, thus violating the overall interests of society, can it be considered that there has been an act that should be regulated by the competition law. Competition law only regulates illegal competition relations, not legal competition relations. Legal competitive behavior and competitive relationship can be regulated by civil law, administrative law and other departmental laws. If we only look at the proportion of the provisions, this view has its rationality, because in the competition law, the regulation content of illegal competition behaviors such as monopoly and unfair competition does have absolute advantages, and it seems that its adjustment object is limited to illegal competition relations. However, legal competitive relationship and illegal competitive relationship in competitive relationship are two sides of the same problem. They just use different words in the competition law, and there is no distinction between primary and secondary. In fact, the definition of illegal competition and the corresponding legal responsibilities in the competition law also stipulate the identification and protection of legal competition. When a certain competitive behavior is recognized as conforming to the basic principles of the competition law and does not constitute monopoly or unfair competition, can it be said that it is not regulated by the competition law? Competition management relationship is a kind of social relationship formed by national competition authorities in the process of supervising and managing the market according to their functions and powers, that is, a relationship between national competition authorities and market subjects. Competition is the spontaneous behavior of market participants in pursuit of maximizing benefits. Competitors have their own independent economic interests. They always decide their own competitive behavior from their own interests. It is completely impossible to fantasize about overcoming or eliminating monopolistic behaviors, restrictive behaviors and unfair behaviors that distort the competition mechanism through competitors' own behaviors. Therefore, there must be a strong organization to undertake this responsibility, and the government is duty-bound. Because, in today's society, only the government has the authority and ability to reconcile the conflicts of interests of competitors. Different from the competition relationship, the competition management relationship belongs to the category of state administration in essence, and its characteristics are: (1) The competition management relationship must take the competition management authority with management authority as one side, that is, the manager must be the management authority with management authority, and the managed can only be the subject of market competition; (2) The status of both parties in the management relationship is unequal. One party enjoys the right to operate according to law, while the other party undertakes the obligation to accept management according to law, and the managed party must obey the authority of the manager; (3) The purpose of management is not to directly participate in competition, but to protect fair competition, restrict or sanction unfair competition that has already occurred, and create good external conditions for fair competition; (4) The occurrence of the competition management relationship does not depend on the will of the market subject, nor does it depend on the will of the management organ. If the management organ fails to perform its management obligations and the managed person fails to accept management according to law, it shall bear corresponding legal responsibilities. Management relationship is a concrete manifestation of the state's intervention in the market economy. Whether the management behavior of the management organ is appropriate will not only involve the interests of the managed and the prestige of the manager, but also have a direct impact on whether an effective competition mechanism can be established. Therefore, competition management must also be brought into the legal track and carried out in accordance with market rules and legal provisions. The position and function of competition law Competition law is a legal discipline formed with the intervention of the state on the competitive behavior of market participants. Judging from the division standard of legal departments, competition law is an important part of modern economic law and belongs to the category of economic law. From16th century to11970s, capitalism was in a period of free competition. During this period, free competition was the dominant mode of economic activities, and the state basically adopted a laissez-faire policy of non-intervention in the economic field and only played the role of a negative night watchman. Under the influence of free competition and natural law, the main task of law is to maintain private autonomy, that is, individuals have absolute rights to enjoy property and conclude contracts. The activities of the state are limited to the protection of these rights of individuals and act as mediators in disputes between individuals, and should not interfere with individual freedom. Therefore, the civil law regulating the economic relations between private individuals became the most important part of the law in this period. The principles of individual rights, absolute private rights, freedom of contract, fault liability and the corresponding main systems in civil law fully reflect the needs of the bourgeoisie to pursue personal interests freely during the rise of capitalism. However, in the sixties and seventies of16th century, free competition reached its peak, and free capitalism moved towards centralization and monopoly. The emergence of monopoly has made various social contradictions of capitalism increasingly acute, economic crises have occurred frequently, and the concept of economic laissez-faire has been shaken. The bourgeoisie began to abandon the belief that the government with less intervention is the better government, and put the government's intervention in economic life into the legal track. In the legal system, the phenomenon of public law of private law has appeared in all countries, and the principles of absolute private rights and freedom of contract have been restricted, and the influence of social standard legislative thought has been further expanded. In the 20th century, in order to prepare for and cope with the war, Germany intervened in the economy through legislation, restricted individual property rights and freedom of contract, and controlled materials and prices, which led scholars to study this legal phenomenon, and the concept of economic law came into being. Since then, economic law, as a form of state intervention in social and economic life, has been gradually recognized by various countries and become an important legal department in the legal system. In order to make up for the market defects, the government needs to moderately intervene in the economy on the premise of respecting the laws of the market economy. Economic law just meets this requirement. It not only breaks through the concept that economy is a private matter of citizens and the state does not interfere, but also avoids the common defects of countries in planned economy. The economic law system includes three parts: market management law, macro-control law and social security law, and the management of competitors' competitive behavior is one of the key points of national market management. Therefore, competition law is an important part of market management law and an important part of economic law. Some scholars have put forward different views on whether competition should be included in the scope of economic law. They dissected the core norms of competition law from the perspective of norms, and had new thoughts on economic law. Taking China's anti-unfair competition law as an example, they put forward the view of non-independence of economic law. It is believed that the anti-unfair competition law has the dual legislative purposes of civil law and administrative law, two adjustment objects and two sanctions. Considering the principle of theme adjustment, it is not inappropriate to classify the whole law into the category of civil law and regard it as the concretization of the general principles of civil law. We think this view is controversial. Economic law is not a simple combination of civil law norms and administrative law norms, but a legal norm that adapts to the development of modern market economy and integrates public law and private law to adjust economic relations. Its adjustment means and methods are significantly different from traditional civil law and administrative law. At the same time, the competition law mainly stipulates various related obligations of the competitors in the form of mandatory norms and prohibitive norms, which is obviously different from the civil law norms that mainly stipulate the private rights of civil subjects in the form of authorization norms and the administrative regulations that mainly stipulate the powers and obligations (powers and responsibilities) of state administrative organs. Therefore, as an independent legal department, economic law has its rationality and necessity, and it is the necessity of the historical development of market economy, and competition law is undoubtedly an important part of it. Competition law, as a basic legal norm to adjust competition relations, involves almost all economic fields and activities, fundamentally maintains the market structure and order of the whole country, enables the competition mechanism to function normally, and thus brings about the prosperity and development of the national economy. Just like this, modern competition law is called the cornerstone of national economic constitution or national economy by jurists in some countries. The role of competition law in the market economy is multifaceted, which can be summarized as follows: First, maintain a reasonable market structure and create a fair and reasonable competitive environment. Whether the market structure is reasonable is an important factor to determine whether the competition mechanism is effective. China's current market structure is characterized by monopolistic competition, and monopolistic market and free competition coexist. Monopoly market refers to a market with no competition or weak competition. Monopoly competitive market is a market that contains both monopoly factors and competition factors. The characteristics of this kind of market are that not all market participants can enter, but they must reach a certain level of economies of scale, and the products are very different, that is, there are objectively barriers to entering the market; However, competition among market players is not excluded. On the contrary, due to the number and scale of market players, the competition between them is stronger and higher. A free competitive market refers to a market where any market subject can participate in the competition without market entry restrictions. This market is characterized by many market participants and fierce competition. The task of competition law is to stipulate the application of anti-monopoly exceptions according to the national industrial policy and the needs of national economic development, and to safeguard the monopoly position of some industries closely related to the national economy and people's livelihood and national security; For other departments and industries, it is necessary to stipulate the standards of enterprise merger and control, strictly control the coordinated market behavior among enterprises and other strategies to restrict competition, and prevent excessive concentration of economic power. Just like this, the formulation and implementation of the competition law will help maintain the rationality of the whole market structure and create a fair and reasonable competitive environment for all market participants. Second, protect and encourage fair competition and maintain normal competition order. The establishment and perfection of competition system and the effective play of competition function must be guaranteed by corresponding legal system. A game without legal guarantee and order rules can only be chaotic, inefficient and even destructive. Competition law is such a legal norm: by stipulating the basic principles of market competition that market participants should abide by, it provides market participants with the value of their own behavior and points out the direction for their effective competition; Restrain the competition behavior of market participants by prohibiting unfair competition behavior, and avoid the disorder and confusion that may occur in market competition; By prohibiting monopolistic behavior, we can prevent the emergence of exclusion competition and maintain the balance of economic structure and the vitality of market competition; By investigating monopoly and unfair legal responsibilities, punishing offenders, protecting the legitimate interests of other operators and fair competition, and maintaining normal social competition order and economic order. Third, standardize government behavior and provide a basis for the government to manage market competition. Under the condition of market economy, the state combines administrative power with state-owned property ownership. The government not only manages economic activities as a public authority, but also participates in economic activities as the owner of state-owned property rights, which leads to the separation of government from enterprises. Under the condition of market economy, the government can only be the representative of public rights and exercise administrative power, but can't directly participate in competition as a market subject. The government's management of market competition must be based on the premise of not hindering the normal play of market competition mechanism and aiming at making up for the failure of market competition. Therefore, when the government exercises its management functions in market competition, it can only be carried out by the functional institutions stipulated in the competition law in accordance with their functions and procedures. While making up for the market failure and preventing the government from failing due to excessive intervention, we should pay attention to avoiding the subjectivity and arbitrariness of management behavior. Fourth, coordinate the relationship between operators and consumers and safeguard the legitimate rights and interests of consumers. Market competition, in a sense, is a contest for operators to compete for more consumers in a certain range. Therefore, market competition is closely related to the interests of consumers. The behavior of market competitors, whether unfair competition or monopoly, will directly or indirectly harm the legitimate rights and interests of consumers, and these behaviors are prohibited by the competition law. Therefore, the competition law is to coordinate the relationship between operators and consumers and safeguard the legitimate rights and interests of consumers. It also plays an important role.