Recently, the central government has continuously proposed and emphasized the task of combating unfair competition in the new situation.
The "Proposal of the Central Committee of the Communist Party of China on Formulating the Fourteenth Five-Year Plan for National Economic and Social Development and the Long-term Goals for 2035" approved by the Fifth Plenary Session of the 19th Central Committee Among the goals are "a more complete fair competition system", and the section "Comprehensively deepen reforms and build a high-level socialist market economic system" emphasizes "strengthening anti-monopoly and anti-unfair competition law enforcement and justice, and enhancing comprehensive market supervision capabilities."
On November 30, 2020, the Political Bureau of the CPC Central Committee held the 25th collective study on strengthening the protection of intellectual property rights in my country. General Secretary Xi Jinping emphasized when presiding over the study, "We must strengthen legislation in areas such as geographical indications and trade secrets." It is necessary to improve laws, regulations, and policies related to intellectual property anti-monopoly and fair competition".
The Politburo meeting of the CPC Central Committee held on December 11, 2020 proposed for the first time "strengthening anti-monopoly and preventing the disorderly expansion of capital".
The Central Economic Work Conference concluded on December 18, 2020 identified "strengthening anti-monopoly and preventing the disorderly expansion of capital" as one of the key tasks in 2021, and clearly stated that "anti-monopoly and anti-unfair competition are perfecting socialism. The market economy system and the internal requirements of promoting high-quality development", "we must strengthen regulation, enhance supervision capabilities, and resolutely oppose monopoly and unfair competition."
The Central Political and Legal Work Conference held on January 9, 2021 also proposed "strengthening 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. This is not accidental. It is the inherent requirement of our country to promote a better combination of effective markets and effective governments at this stage to promote high-quality economic development.
1. The market competition mechanism has an irreplaceable positive effect, but it itself needs to be maintained
The core issue of my country's economic system reform is to properly handle the relationship between the government and the market, so that the market can play a decisive role in the allocation of resources and better play the role of the government.
The decisive role of the market is to let the law of value, competition and supply and demand play a decisive role in the allocation of resources.
The law of competition among them is realized through the survival of the fittest mechanism, which encourages advanced market competition and lashes out the backward.
As the most basic operating mechanism of the market, competition has positive effects in many aspects, such as rational allocation of scarce resources, promoting economic and technological progress, promoting the rational distribution of income, fully protecting consumers’ rights and interests, and protecting people’s rights. Economic freedom creates an economic foundation for social equality.
However, competition also has some negative effects. In addition to the survival of the fittest may cause social problems such as corporate bankruptcy, worker unemployment, disparity between the rich and the poor, and blindness may cause waste of resources, economic turmoil and recession, etc., only the market competition process itself In other words, it also tends to generate power to disrupt competition, which is mainly manifested in the monopoly and unfair competition as a "by-product" of market competition.
The former makes competition impossible, and the latter makes competition develop disorderly.
Whether it is monopolistic behavior or unfair competition behavior, the positive role of competition cannot be brought into play, the normal order of the market is disrupted, and the vitality of the economy is suppressed.
Therefore, competition as one of the core contents of the "invisible hand" of the market mechanism, although it has an irreplaceable positive effect, it will also bring some negative consequences, so it needs the government "visible hand" to maintain .
In modern society, the maintenance of market competition mechanisms is mainly manifested in the formulation and implementation of corresponding policies and laws to guide, regulate and regulate market competition behaviors in order to minimize the possible negative effects of competition.
Among them, in order to solve the problems of monopoly and unfair competition brought about by competition, it is necessary to formulate and implement competition laws, including the "Anti-Monopoly Law", "Anti-Unfair Competition Law" and other related legal systems. The purpose is to maintain normal market competition. Order is ultimately for the market mechanism to function better.
In the process of my country’s reform and opening up, with the introduction of market competition mechanisms and playing an increasingly important role as well as the gradual integration into the world economic system, my country has correspondingly produced legal anti-monopoly and anti-unfair competition requirements. Corresponding competition legal systems have gradually formed, mainly the "Anti-Unfair Competition Law" enacted in 1993 and revised twice in 2017 and 2019, and the "Anti-Monopoly Law" enacted in 2007 and implemented in 2008.
Generally speaking, my country has established the basic framework of the competition legal system, and has laws to follow in anti-monopoly and anti-unfair competition, but it also needs to be adjusted and improved continuously with the new conditions of market development and changes.
2. Although anti-unfair competition and anti-monopoly have their own specific goals and features, both are indispensable for maintaining the normal market competition order and promoting the healthy development of the 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 goals and functions.
In addition to the differences in the background and legal sources, regulatory 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 are legal tools to maintain a fair competitive market environment. They have a common orientation and positive role in protecting the market competition mechanism. They both regulate market competition behavior and are conducive to safeguarding the legitimate rights and interests of operators and consumers. Both are essential for maintaining normal market competition order and promoting the healthy development of the market economy.
Anti-unfair competition to maintain a fair competition order requires that competition be able to unfold freely and requires anti-monopoly to perform its functions; anti-monopoly maintenance of free competition order requires a fair competition environment and requires anti-unfair competition to function.
Therefore, in some countries or regions, combined anti-unfair competition and anti-monopoly legislation has even been adopted, and the same law enforcement agency is responsible for enforcement.
3. Under the new situation, strengthen the basic position of competition policy, strengthen law enforcement and justice against unfair competition, and promote the high-quality development of my country's economy
There are many manifestations of unfair competition behavior. The most typical ones include market confusion, commercial bribery, false or misleading commercial propaganda, infringement of trade secrets, unfair rewarded sales, commercial slander, and the use of technical means. Unfair competition on the Internet, including "choose one of two".
These actions not only directly damage the legitimate rights and interests of other operators and consumers, but also distort and undermine the normal market competition mechanism, worsen the business environment, and ultimately affect the high-quality economic development.
The Anti-Unfair Competition Law, as the basic law for maintaining the order of the market economy, is aimed at prohibiting the use of unfair means such as violating business ethics to engage in market competition, maintaining the normal order of market competition, and safeguarding consumer interests and the public. Benefits, thereby promoting high-quality economic development.
The revised "Anti-Unfair Competition Law" has been enriched and improved in content, and achieved good implementation results: In the first two years after the promulgation of the new "Anti-Unfair Competition Law", the country has carried out rectification of "health care" market chaos for a hundred days Actions were taken to increase the investigation and punishment of unfair competition in key areas. A total of 23,500 cases were investigated and 1.329 billion yuan was fined and confiscated.
Especially in September 2020, the State Administration of Market Supervision imposed administrative penalties on 45 companies including Ruixing Coffee (China) Co., Ltd. and Ruixing Coffee (Beijing) Co., Ltd. for fraudulent transactions and unfair competition. The total penalty amount was 61 million yuan. Had a great social impact.
Obviously, anti-unfair competition is of great significance for creating and maintaining a market-oriented, legalized, and internationalized 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 emphasized "strengthening the fundamental position of competition policy" and demanded "strengthening anti-unfair competition law enforcement justice."
To this end, it is necessary to further strengthen the enforcement of anti-unfair competition in conjunction with some contradictions and problems in the implementation of the revised "Anti-Unfair Competition Law."
First, further improve and refine the anti-unfair competition legal system.
The current "Anti-Unfair Competition Law" is still relatively principled and general, and it is not very operable in many aspects. The work of "establishment, reform, abolishment, and interpretation" of related supporting regulations and normative documents has not fully kept up.
To this end, it is necessary to enhance the operability of the Anti-Unfair Competition Law through the work of “reform, reform, and abolish” related supporting regulations, judicial interpretations, and normative documents. At the same time, it is necessary to promote the “Anti-Unfair Competition Law” itself. Further revision and improvement.
Second, strengthen the construction of my country's anti-unfair competition law enforcement agencies under a unified market supervision pattern.
Under the current unified market supervision pattern, my country's anti-unfair competition law enforcement is facing many difficulties. This requires corresponding policies and measures to strengthen the construction of my country's anti-unfair competition law enforcement agencies, including: optimizing anti-unfair competition law enforcement agencies Increase the number of personnel; rationally allocate anti-unfair competition enforcement powers within the market supervision department; take practical measures to strengthen the construction of anti-unfair competition enforcement capabilities.
Third, establish and strengthen the coordination mechanism for anti-unfair competition work, and solve the problem of multiple law enforcement.
The revised "Anti-Unfair Competition Law" stipulates that an anti-unfair competition coordination mechanism should be established at the State Council level, and its responsibility is to study and decide major anti-unfair competition policies, and coordinate the handling of 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 led by 17 departments, which is conducive to further strengthening the organization, leadership and overall coordination of anti-unfair competition work, and better Study and resolve major issues in maintaining the order of competition.
In the future, it is possible to consider linking up and coordinating work with the Anti-monopoly Committee of the State Council, or even consider integrating it to establish a Fair Competition Commission of the State Council to coordinate anti-monopoly and anti-unfair competition work in a unified manner.
At the same time, the revised "Anti-Unfair Competition Law" still retains the clause that "laws and administrative regulations shall be investigated and dealt with by other departments in accordance with their provisions." The phenomenon of competition between this law and other laws and regulations is still relatively serious. Unclear and unclear responsibilities, it is necessary to resolve the multiple law enforcement problems of the Anti-Unfair Competition Law through legal amendments to ensure the uniformity and efficiency of law enforcement.
Fourth, while strengthening anti-unfair competition law enforcement, strengthen the cultivation of competition culture and promote the development of competition compliance.
The publicity and popularization of the "Anti-Unfair Competition Law" is of great significance for raising the public's awareness of anti-unfair competition laws and cultivating the competition culture of the whole society.
In addition to the self-discipline of the operators and the government itself, it also needs external promotion, especially the promotion of the "Anti-Unfair Competition Law" and competition advocacy activities.
It is recommended to promote the development of anti-unfair competition compliance guidelines at the national and local levels in the future.
(The author of Wang Xianlin is a distinguished professor of Shanghai Jiaotong University, director of the Competition Law and Policy Research Center, a member of the Expert Advisory Group of the Anti-Monopoly Committee of the State Council, and vice chairman of the Economic Law Research Society of the Chinese Law Society)