On the Defects of Administrative Monopoly1 in China's "Anti-Monopoly Law" and Its Improvement/SUR LES DEFAUTS DE LA MONOPOLE ADMINISTRATIF DANS LA "LOI ANTI-MONOPOLE" EN CHINE ET SON AMELIORATION (2010)

Abstract: Regulating administrative monopoly is the major task of China's and the greatest challenge in its enforcement. Anti-monopoly has done a special chapter on administrative monopoly for the first time, which is a significant breakthrough of our country's legislation on the regulation of administrative monopoly. But, after all, is a new and due to the limitations of legislation, there are many system deficiencies, on the regulation of administrative monopoly in China's Anti-monopoly law, which make it can not fully come into play. So, it is necessary to perfect the measures that can make up for the system deficiencies. Key words: anti-monopoly law; administrative monopoly; system defects; measures to improve; democracy Resume: La reglementation de monopole administratif est tâche principale de la anti-monopole en Chine et le plus grand defi dans son application. Pour premiere fois, loi anti-monopole a fait un chapitre special sur le monopole administratif, ce qui est une percee importante dans legislation sur reglementation de monopole administratif de notre pays. Mais, apres tout, la anti-monopole est une nouvelle loi, et en raison des limites de legislation, et il existe de nombreuses lacunes dans le systeme de reglementation de monopole administratif dans loi anti-monopole, ce qui l'empeche d'entrer pleinement entrer enjeu. Du coup, il est necessaire de perfectionner les mesures qui peuvent compenser les defauts du systeme. Mots-cles: anti-monopole; monopole administrative; defauts du systeme; mesures visant a ameliorer; democratie economique FOREWORD The greatest monopoly problem in the process of Chinese transformation and developing market economy is not transnational corporations or foreign-capital enterprise monopoly, not private enterprise monopoly, but widespread administrative monopoly. Administrative monopoly is the result of administrative power's improper intervention in the market after it is distorted and abused, driven by interest, which is essentially administrative malfeasance. Administrative monopoly destroys the order of free competition in the market seriously, hinders the formation of a uniform Chinese market, hampers the effective allocation of social resources, increases social cost and harms the interests of consumers and operators. In addition, administrative monopoly has brought serious political and social harm, hampering China's political restructuring and the construction of harmonious society. So, we can say that without administrative monopoly problem being solved, political democracy and democracy can not be achieved in China. Therefore, China must regulate administrative monopoly strictly in the law so as to create a good environment for China's and social development. In august 2008, China's Anti-monopoly gave a special regulation on administrative monopoly, making many breakthroughs in legislation. However, due to various factors unfavorable, there are still many imperfections in the provisions on administrative monopoly in Anti-monopoly law. Only by constantly perfecting these shortages can China make Anti-monopoly which is called economic constitution play its proper role. 1. THE INSTITUTION BREAKTHROUGH OF REGULATING ADMINISTRATIVE MONOPOLY IN CHINA ANTIMONOPOLY LAW After a legislative process of 14 years, China's was passed on August 30, 2007, and came into force on August 1, 2008. The provisions on administrative monopoly in include eight articles in general provisions, the whole fifth chapter and the 51st article in the seventh chapter. Although these provisions can not prevent administrative monopoly completely in present law and political system, they not only reflect the interests and needs of Chinese common people, but also show that China's has the function of regulating administrative monopoly. …