Development of abuse of administrative power to eliminate or restrict competition in the anti-monopoly law of the People’s Republic of China and the impact of article 106 of EU competition law and free movement rules

KZ Law of Nations

Luo, Zhaojing ; Furse, Mark

University:University of Glasgow

Department:School of Law

关键词: Competition law, Chinese anti-monopoly law, abuse of administrative power, article 106, free movement rules;   

Others  :  http://theses.gla.ac.uk/4045/1/2012luophd.pdf

来源: University of Glasgow

【 摘 要 】

The Chinese Anti-monopoly Law (AML) entered into force on August 1, 2008 and abuse of administrative power to eliminate or restrict competition is prohibited and dealt in Chapter Five of this law. Abuse of administrative power is one of the most significant ways to eliminate or restrict competition in China. Great concerns had been focused on the rules of abuse of administrative power before the AML was promulgated. However, its progress in practice is slow and experiences difficulties after this law took effect. Little research has been undertaken outside of China on abuse of administrative power to eliminate or restrict competition due to the specific background and situation pertaining in China.Concerning to abuse of administrative power, the AML have close relationships with EU competition law and free movement rules. This thesis aims to provide a critical comparison between the AML, Article 106 TFEU of EU competition law and free movement rules, and draws on the EU’s experience as a source of criticism and guidance in relation to the application of abuse of administrative power to eliminate or restrict competition in the AML.This study first provides a background introduction on the development of the AML and abuse of administrative power to eliminate or restrict competition and analyses the complicated causes of abuse of administrative power in competition through three areas: the history of China’s economic system, economic theory and legislation. The main comparative and critical research are held in Chapters Four and Five which examine the relationships between abuse of administrative power in the AML, Article 106 TFEU and EU free movement rules respectively. In Chapter Six a case study is taken in telecommunications sector. The application of abuse of administrative power provisions of the AML in telecommunications sector is examined through three areas: market access, interconnection and universal services.This thesis concludes by noting that (1) abuse of administrative power to eliminate or restrict competition provisions in the AML should be revised on the content of these provisions and their exemption rules; (2) a dual-structure of controlling abuse of administrative power based on monopolistic conduct and free circulation is held in the AML; (3) the inapplicability of abuse of administrative power provisions in these telecommunications issues requires a revise for abuse of administrative power in the AML.