THE JURISPRUDENTIAL ANALYSIS ON THE EXCEPTION SYSTEM OF FAIR COMPETITION REVIEWI. ON THE CONNOTATION OF THE EXCEPTION SYSTEM OF FAIR COMPETITION REVIEWII. THE NORMATIVE CONSTITUTION OF THE EXCEPTION SYSTEM OF FAIR COMPETITION REVIEW
A. Substantive Elements
B. Procedural Elements
III. THE DISTINCTION BETWEEN THE EXCEPTION SYSTEM OF FAIR COMPETITION REVIEW AND THE SYSTEM OF ANTI-MONOPOLY LAW
A. An Analysis of the Concept of Exception System of Anti-Monopoly Law
B. On the Concept of Exemption System of Anti-Monopoly Law
IV. THE LEGAL ATTRIBUTE OF THE EXCEPTION SYSTEM OF FAIR COMPETITION REVIEW
A. The Limited Dimension of the Universality of Conventional System
B. The Legalization Dimension of Specific Public Policies
C. On the Exemption Dimension of Government’s Restrictive Competition Behavior
The exception system of fair competition review refers to the situation that the review authority finds that some policies and measures have the effect of excluding and restricting competition in the process of implementing fair competition review, but it is finally allowed to be implemented based on the special provisions of the law. The exception system of fair competition review mainly includes two parts: substantive elements and procedural elements. In terms of the distinction between the relevant systems of anti-monopoly law, the exception system of fair competition review, the exception system of anti-monopoly law and the exemption system of anti-monopoly law have their inherent consistency and great differences. In order to understand the legal attribute of the exception system of fair competition review, we can comprehensively grasp it from the dimensions of the limitation of the universality of the conventional system, the legalization of specific public policies, and the exemption of the responsibility of the government in restricting competition.With the promulgation of the Opinions on the Establishment of the Fair Competition Review System in the Construction of the Market System by the State Council (hereinafter referred to as the Opinions of the State Council) in 2016 and the Detailed Rules for the Implementation of the Fair Competition Review System (Interim) (hereinafter referred to as the Interim Implementation Rules) issued by the five departments in 2017, the fair competition review system in China has initially taken shape. In terms of standard structure, it adopts the text style of ‘principle+exception’, that is, to introduce the corresponding exception system in addition to the conventional system. In other words, under the framework of the existing fair competition review system, a policy measure with the effect of excluding and restricting competition cannot be introduced in principle, but it is based on the protection of national interests and the purpose of social public interests, and at the same time in line with the requirements that ‘relevant policies and measures are indispensable to the realization of policy objectives, and will not seriously exclude and restrict market competition, and clearly define the implementation period’, then it can be implemented. In the same period, although the focus on the subject of ‘fair competition review’ has been greatly increased, and a lot of research results have been achieved, there is a lack of due attention to the exception system of fair competition review. However, as an important part of the fair competition review system, exception system not only has its own important function bearing, but also has a far-reaching impact on the implementation of fair competition review. In view of this, this paper chooses the fair competition review exception system as the research topic, and then makes a deep and systematic exposition on its basic meaning, normative structure, relationship with the relevant system of anti-monopoly law and legal attribute.I. ON THE CONNOTATION OF THE EXCEPTION SYSTEM OF FAIR COMPETITION REVIEWIn general, the principle is the premise and foundation of exception. Based on this logic, the conventional system of fair competition review undoubtedly constitutes the logical premise for the construction of the exception system of fair competition review. In this way, only by clarifying the meaning of the conventional system of fair competition review in advance can it be possible to further define and clarify the basic meaning of the exception system of fair competition review. In view of the issue of fair competition review, the domestic theoretical discussion can be divided into two parts according to the time dimension, that is, the definition before and after the text is fixed. Specifically, before the formal establishment of the relevant system, people initially understood and recognized the concept of fair competition review mainly through the introduction of similar foreign systems by relevant scholars. It is worth mentioning that at that time, the academic circles seldom used the expression of ‘fair competition review’ and more used ‘competition evaluation’. In this regard, some scholars pointed out that competition assessment refers to the examination and evaluation of the possible or existing competition impact of government regulation measures by the competent anti-monopoly authorities or specialized agencies, and then seek alternative solutions that have the least impact on competition but can still achieve specific policy objectives. Its purpose is to prevent the regulation from exceeding the necessary limit to achieve its objectives and causing significant competition adverse effects. In terms of substance, the competition assessment here refers to the fair competition review.With the implementation of the Opinions of the State Council, the fair competition review system has been established in China, and the concept of fair competition review has become increasingly unified. Further, this unity mainly includes the following two forms: firstly, it began to use the expression of fair competition review; secondly, it began to focus on the definition of relevant concepts in combination with the current normative texts in China. For example, some scholars pointed out that fair competition review means that when formulating policies and measures, the relevant parties should consider the possible impact of policies on market competition, so as to make the policies and measures meet the requirements of fair competition and relevant laws and regulations, so as to achieve the purpose of policies and reduce the exclusion and restriction of competition as much as possible, so as to give full play to the decisive role of the market in allocating resources, and maintain the system for fair competition among market players.Through the above brief discussion, it is not difficult to see that although different scholars have some differences in terms of concept expression and specific definition, the general academic community has reached a relatively broad understanding of the basic connotation of fair competition review. Generally speaking, it mainly includes the following aspects: first, in terms of target objects, fair competition review is directly aimed at the government’s formulated or existing policies and measures, that is, the so-called ‘public policy’; in terms of the implementation subject, the subject of fair competition review is generally the national competition authority or special examination body; in the aspect of implementation mode, fair competition review is mainly applied to the national competition authority or special examination body. In terms of legislative purport, fair competition review aims to reduce unnecessary restrictions and distortions on market competition by restricting and regulating government intervention, so as to safeguard and maintain fair competition market order and market environment as far as possible.In fact, with the establishment of the normative text, the basic meaning of the exception system of fair competition review is also clear. In short, the so-called exception system of fair competition review can be understood as a special institutional arrangement set up by legislators in the field of fair competition review for conventional systems. As far as the current system is concerned, the Opinions of the State Council have not only clearly stipulated the objects, methods and standards of the fair competition review (including 18 prohibitive provisions in four categories), and also set up corresponding exception regulations. On this basis, the Interim Implementation Rules promulgated later supplement and improve the relevant provisions on the exception of fair competition review. Combined with the specific content of the current system, as a special institutional arrangement, this paper believes that the basic meaning of the exception system of fair competition review can be summarized as: in the process of implementing fair competition review, the review authority finds that some policy measures have the effect of excluding and restricting competition, but based on the special provisions of the law, it is finally allowed the situation in which it can be implemented. From the perspective of system function, it is obvious that the exception system of fair competition review not only restricts the conventional system, but also eliminates it, that is, it makes the conventional system unable to play its due legal effect in certain specific circumstances.II. THE NORMATIVE CONSTITUTION OF THE EXCEPTION SYSTEM OF FAIR COMPETITION REVIEWIt is obvious that the rule of competition, as a rule of law, is not an exception. According to the current normative text, the internal constitution of this exception system can be divided into two parts: substantive elements and procedural elements.As the name implies, the so-called substantive elements point to the substantive content of the legal system. According to the above-mentioned Opinions of the State Council and the Interim Implementation Rules, the substantive elements of exception system to China’s fair competition review mainly include the following four specific contents: first, to safeguard national economic security, cultural security or national defense construction; second, to achieve the purpose of poverty alleviation and development, disaster relief and other social security purposes; third, to achieve economy energy resources, protection of the ecological environment and other social and public interests; fourth, other situations stipulated by laws and administrative regulations. If the above-mentioned contents are further refined and summarized, the first case can be summarized as based on the needs of national interests, and the situations involved in the second and third items can be uniformly defined as based on the needs of social public interests, and the fourth situation is specifically stipulated by laws and administrative regulations. From the perspective of substantive content orientation, it should be said that the substantive content of the exception system to China’s fair competition review is mainly based on the consideration of specific purposes.From the perspective of relevant normative text structure, the substantive content arrangement of the exception system to China’s fair competition review adopts the legislative style of ‘list+cover up’. Specifically speaking, on the one hand, the existing system design mainly extracts and absorbs some typical contents that have accumulated long-term institutional experience in other legal systems and obtained broad social consensus, such as the aforementioned national security and social public interest. Obviously, the advantage of this approach is that it not only makes the exception system of fair competition review have a set of relatively clear legal standards, but also does not face the challenge and interrogation of the legitimacy and rationality of the system. On the other hand, the existing institutional arrangements have also set up corresponding covering provisions, that is, ‘other circumstances prescribed by laws and administrative regulations’. In fact, such a kind of legal clause with the nature of covering the whole can also be called an ‘external clause’ in a certain sense. As scholars pointed out when exploring the system of exemption from the application of anti-monopoly law in China, the ‘external type’ exclusion means that if the legal documents related to industrial policies have made a system design to exclude the application of anti-monopoly law, then based on the system research of China’s current legal system framework, the Anti-Monopoly Law obviously does not have the priority applicability, so the corresponding legal provisions also constitute a practical sense of the application of the Anti-Monopoly Law. The main function of the Opinions of the State Council and the Interim Implementation Rules for the substantive elements of the exception system of fair competition review is to transfer other exceptions to the laws and administrative regulations. In other words, it actually connects the relationship between the special legislation for fair competition review and other laws and administrative regulations. In this sense, the above-mentioned cover clause can be regarded as the ‘external clause’ in the exception of fair competition review.The so-called procedural elements refer to the procedural requirements set in the legal system to achieve the substantive content or objectives. From a narrow perspective, combined with the specific provisions of the Opinions of the State Council, the procedural elements in the constitution of the exception system of fair competition review mainly include the following two parts: the first is the relevant obligation to explain and time limit requirements, that is, ‘the policy-making mechanism should state that relevant policies and measures are indispensable to the realization of policy objectives, and will not seriously exclud and limit market competition and specify the implementation period.’ The second is the obligation of regular evaluation and timely policy adjustment procedures, that is, ‘the policy-making organs shall evaluate the implementation effect of relevant policies and measures year by year’ and policies and measures whose implementation period is expired or fail to achieve the expected effect shall be stopped or adjusted in time. From the general function point of view, the existence of the above two procedural elements can undoubtedly play a corresponding role in restricting and restricting the specific application of the exception system of fair competition review. In this regard, there is a view in the academic community that in fact holds a more positive attitude. In its view, the procedural application requirements of the above-mentioned exception system are actually very strict. For example, some scholars have pointed out that the exception system should not be regarded as a ‘window opening’ move. In fact, its application has more stringent procedural requirements, that is, it needs to meet the two conditions of ‘indispensable to the realization of policy objectives’ and ‘will not seriously exclude and restrict market competition’, and it also needs to be evaluated year by year. In addition, the regular assessment of the exception system cannot only solve the possible shortcomings and problems of the prior review method, but also timely respond to and adapt to the changes in the market environment that may occur during the implementation of policy measures.In addition to inheriting the existing contents of the Opinions of the State Council, the Interim Implementation Rules has supplemented, improved and perfected the procedural elements of the exception system of fair competition review to a certain extent. Generally speaking, the two new contents are as follows: the first is the obligation of written explanation on whether the exceptional provisions are applicable or not, and the further specific obligations when applying the exceptions, i.e. ‘the policy-making organ shall state whether the policy measures are applicable to the exceptional provisions’ and ‘consider the application of the exceptional provisions’ mentioned in the Interim Implementation Rules. If so, the circumstances and conditions for the application of the exceptions shall be specified in detail. The second is the requirement of a regular written evaluation report, that is, ‘the policy-making organ shall evaluate the implementation effect of the policy and measure applying the exception provisions year by year, and form a written evaluation report.’ It should be recognized that compared with the existing provisions of the Opinions of the State Council, the newly added relevant contents in the Interim Implementation Rules have obvious progress, that is, it puts forward more stringent procedural requirements for the review authority to apply the exception system of fair competition review. Whether it is a written description of whether the exception is applicable or not, or a further detailed description of the obligation, or the requirement of a regular written evaluation report, the common points of the two are to emphasize the written and traceability of the application process of the exception system of fair competition review. In this way, it can not only ensure that the entire review exception procedure has certain text records, but also provide the necessary premise for the smooth development of the related review and supervision work.Of course, from a broader perspective, the overall procedural elements of China’s fair competition review exception system are not only limited to the above-mentioned requirements, but also need to go through the following pre-processing links and steps: the first step is to identify the object of review, that is, the subject of the review first needs to confirm whether the policy measures being reviewed constitute the subject of review specified in the aforementioned opinions. In this process, if the relevant policy measures are confirmed to be the statutory object of review, then the fair competition review procedure will formally enter the next step; on the contrary, if the policy measures involved in the case do not constitute the statutory review object, then the whole fair competition review procedure will be terminated accordingly. For example, the target object of fair competition review should have economic characteristics, that is, the basic orientation of the target object of fair competition review is aimed at the economic market competition field. At this time, if the relevant policies and measures are found to have no normative content involving the economic activities of market entities, then the fair competition review can be ended, and the exception system in this field will have no ‘place to use’. The second step is to determine whether the relevant policies and measures violate the principle of fair competition according to the existing review standards, which mainly include market access and exit standards, free flow standards of commodities and elements, standards affecting production and operation costs and standards affecting production and operation behavior. If the relevant policies and measures do not violate the above-mentioned examination standards, then the fair competition review shall be terminated; on the contrary, after the relevant policies and measures are examined, it is found that there are illegal examination standards, and the whole examination process will enter the next stage. The third step is to determine whether the relevant policies and measures conform to the needs of safeguarding national interests and social public interests or other laws and administrative regulations. In this step, if the relevant policies and measures do not meet the needs of realizing national interests or social public interests, and also do not meet the exceptions provided by laws or administrative regulations, then the fair competition review exception system lacks the applicable space; on the contrary, the application procedure of the above-mentioned narrow fair competition review exception system will be officially launched.
III. THE DISTINCTION BETWEEN THE EXCEPTION SYSTEM OF FAIR COMPETITION REVIEW AND THE SYSTEM OF ANTI-MONOPOLY LAW
A. An Analysis of the Concept of Exception System of Anti-Monopoly Law1. The Basic Definition of the Exception System of Anti-Monopoly Law. — From the perspective of the world, the exception system of anti-monopoly law is a system generally set up in the anti-monopoly laws of various countries. However, what is the exception of the application of anti-monopoly law? As for the definition of this concept, there are still big cognitive differences in the academic field. The main performance is whether the exception system of anti-monopoly law should be equal to the exemption system of anti-monopoly law. In a strict sense, there is a big difference between the exception of anti-monopoly law and the exemption of anti-monopoly law. The exception of the application focuses on revealing that the anti-monopoly law is not applicable to specific areas and is excluded from the scope of application of the anti-monopoly law. Further combined with the characteristics of the system, some scholars from the perspective of concept comparison further pointed out that the uniqueness of the system lies in: from the perspective of the adjustment object, the exception represents that it is outside the scope of application, that is, it has exceeded the jurisdiction of the anti-monopoly law; from the perspective of adjustment method, the exception mainly adopts positive affirmative form from the perspective of regulatory means, the applicable exclusion is mainly aimed at the behavior and organization that monopoly operation is superior to competitive resource allocation. The differences between the exception system of anti-monopoly law and the exemption system of anti-monopoly law are self-evident through the brief analysis of the above-mentioned definitions and their main characteristics.Further, as far as the scope of application is concerned, it is generally believed that the exception system of the application of anti-monopoly law mainly involves the following situations: First, the field of natural monopoly, that is, the category of monopoly formed based on the natural conditions of the market. Generally speaking, natural monopoly industries usually involve water supply, power supply, telecommunications, electricity, postal services, and transportation. Second, the field of intellectual property. From nature, intellectual property is a kind of intangible property right. Its meaning refers to the exclusive right that people enjoy for the relevant achievements of intellectual creation according to law, that is, an exclusive monopoly right. Combined with the current intellectual property legislation in China, this kind of monopoly right is mainly established based on special intellectual property legislation such as copyright law, trademark law and patent law. Third, the field of agriculture. The reason why agriculture is excluded from the application of anti-monopoly law is closely related to the following two reasons: from the perspective of importance, it is an indisputable fact that agriculture constitutes the foundation of the national economy. It is an important prerequisite and basic guarantee for the stable development of other industries (i.e. the secondary industry and the tertiary industry). From the perspective of particularity, agriculture is an industry restricted and influenced by natural conditions, which is faced with greater natural risks and uncertainties; at the same time, due to the characteristics of small demand elasticity and low substitutability of agricultural products, agricultural production is easily affected by the price mechanism in the free competition market environment, which leads to the emergence of market supply of agricultural products supply exceeds demand or exceeds demand.2. The Relationship between the Exception System of Fair Competition Review and the Exception System of Anti-Monopoly Law. — This part will focus on the relationship between the exception system of fair competition review and the exception system of anti-monopoly law.In terms of consistency, the main similarities between the exception system of fair competition review and the exception system of anti-monopoly law are as follows: First, the consistency of legal effect, that is, the application of both will lead to no corresponding legal liability. In other words, in accordance with the relevant provisions of the Opinions of the State Council and the Interim Implementation Rules, the policy-making organs and their relevant responsible personnel should be investigated for the legal liabilities of the policy-making organs and the relevant responsible personnel for introducing policies and measures in violation of the fair competition review standards. However, in line with the exception system of fair competition review, the government’s policies and measures with the effect of excluding and restricting competition will be allowed to be implemented, that is, the policy-making organs at this time do not need to bear the corresponding legal responsibility. However, the specific implementation of the exemption system of anti-monopoly law has the same final effect as the exemption of legal liability mentioned above. Second, the consistency of legal basis. According to the current provisions, the legal basis of the exception system of fair competition review includes the relevant provisions of other laws and administrative regulations in addition to the direct provisions in the Opinions of the State Council. The legal basis of the exception system of anti-monopoly law generally involves two aspects: one is based on the provisions of the anti-monopoly law itself; the other is based on the relevant special laws, especially the relevant legal provisions of industrial regulation. In this regard, the legal basis for the establishment of the two systems is not only related to the special legislation, but also related to the special provisions of other laws and regulations. Third, the policy considerations behind the system are consistent. Generally speaking, the main policy considerations behind both the exception system of fair competition review and the exception system of anti-monopoly law lie in the concession made by the competition policy when it conflicts with other important policies, especially the industrial policy.As far as the differences are concerned, there are some differences between the exception system of fair competition review and the exception system of anti-monopoly law.First, the nature of law is different. As can be seen from the above, the exception system of fair competition review refers to the policies and measures formulated by government organs and their functional departments. Although they have the effect of excluding and restricting competition, they can be continued to be implemented due to the special provisions of the law. In other words, in the exceptional circumstances of fair competition review, although the relevant policy-making behavior violates the standard of fair competition review in form, due to the consideration of some special reasons, the law provides for the exemption of responsibility for the behavior of policy-making organs. In this sense, the exception system of fair competition review is a kind of ‘illegal deterrence system’. Correspondingly, the exception system of anti-monopoly law means that the law directly excludes relevant situations from the scope of application of the anti-monopoly law. In the case of agreement with the exception of the anti-monopoly application, there is no applicable space for the anti-monopoly law, so it is not to mention whether the relevant behavior violates the relevant provisions of the anti-monopoly law.Second, different forms of expression. As far as the level of fair competition review in China is concerned, its specific manifestation is classified according to the categories of interests, including the exceptions based on national interests, exceptions based on social public interests and other exceptions based on laws and administrative regulations. The exception system of anti-monopoly law is usually aimed at specific industries or specific behaviors, which generally involve natural monopoly, the legitimate exercise of intellectual property rights and agriculture. Further combined with China’s current anti-monopoly law, it only provides for the latter two cases, excluding the application of natural monopoly.Third, the applicable objects are different. The object of the exception system of fair competition review is policy-making behavior, that is, government agencies and their functional departments formulate rules, normative documents and other policies and measures related to the economic activities of market entities; The object of the exception system of anti-monopoly law mainly points to industries and fields that are of great significance to safeguarding the country’s overall economic and social public interests.Fourth, the application restrictions are different. The application conditions of the exception system in fair competition review are complex. It can be seen from the above that the specific application of the exception system in fair competition review should not only meet the substantive requirements, but also meet the corresponding procedural requirements. In contrast, the exception system of anti-monopoly law usually only involves which industries or fields are not applicable to the anti-monopoly law. On this basis, the law will not further restrict its application. It should be further pointed out that such a difference in the level of application restrictions will also have different effects on the discretionary space of the applicable subject. In the case of applying the exception system of fair competition review, both the substantive rules and the procedural rules are faced with strong fuzziness and uncertainty, which inevitably leads to the relevant subjects being given more discretionary space in the process of applying the exception system. On the contrary, because the existing provisions of the exception system of anti-monopoly law are relatively clear, there is not much room for discretion in the application process.B. On the Concept of Exemption System of Anti-Monopoly Law1. The Basic Definition of Exemption System of Anti-Monopoly Law. — According to the legislative practice of anti-monopoly law in various countries, the exemption system is often an important part of it. In a strict sense, different from the exception system of the anti-monopoly law, the exemption system of anti-monopoly law refers to the relevant system that the anti-monopoly law takes a ‘one-sided’ approach to the relevant behaviors that violate the anti-monopoly law under the circumstances of meeting specific conditions, but will not be prohibited by the law. At present, scholars generally believe that the rationality of the existence of the exemption system of anti-monopoly law is closely related to the positive economic benefits it will bring. In a word, such a system is mainly through the economic analysis and benefits balance of monopoly behavior with the attribute of excluding and restricting competition. When the advantages outweigh the disadvantages, the anti-monopoly law will not investigate the legal responsibility of the behavior. According to the standards of the monopoly behavior involved, the exemption system of anti-monopoly law mainly includes the following two types:The first is the exemption system of monopoly agreement. The so-called exemption of monopoly agreement, also known as cartel exemption, means that although the monopoly agreement reached between operators will have the effect of excluding and restricting market competition, but if the agreement is allowed to exist legally, its positive social and economic effects will exceed the aforementioned adverse effects. Therefore, the prohibition provisions of the anti-monopoly law should be exempted. According to the legislative practice of various countries, the form of exemption of monopoly agreement mainly involves the following types: first, R&D cartel, that is, the monopoly agreement involving joint development content is reached between the same trade operators; second, standardized or specialized cartel, that is, the operators who produce the same kind of products are based on reaching a unified production standard or in order to achieve professional division of labor and cooperation; third, the agreement reached between the small and medium-sized enterprises in order to improve their operational efficiency and competitiveness; fourth, the depression cartel, that is, the monopoly agreement reached in response to the production of obvious surplus and serious product sales during the economic downturn; fifth, the social and public interest cartel, that is, monopoly agreements signed to realize the social and public interests of energy, environmental protection, disaster relief and other social and public interests between operators; sixth, import and export cartels, including import cartels and export cartels, namely monopoly agreements reached by enterprises in order to safeguard the legitimate interests in foreign trade and foreign economic cooperation.The second is the exemption system for business combination. The so-called exemption of business combination, also known as the exemption of concentration control, refers to the merger behavior of enterprises. Although it will cause corresponding exclusion and restriction impact on the relevant market competition, the competent authority of anti-monopoly law finally chooses to allow the merger behavior for some special reasons. From the perspective of results, the exemption of business combination and the exemption of monopoly agreement have commonality, which is the product of interest balance to some extent. In terms of the basis of legitimacy, the same as the exemption of monopoly agreements, the exempted enterprise merger should also be a concentration of effects that can promote social production and socialization, improve production efficiency, promote technological development, and enhance international competitiveness. According to the reasons for exemption, exemption from business combination usually involves the following types: first, an exemption based on the overall economic and social public interests. For example, article 42(1) of the Act against Restraints of Competition of Germany stipulates that, in individual cases, the benefits generated by business combination to compete for the overall economy can make up for the restrictions on competition, or the merger conforms to the major social and public interests. Upon application, the merger can be approved. Second, an exemption based on economic efficiency. For example, according to article 28 of the Anti-Monopoly Law of China, if the beneficial effect of an enterprise merger on competition is obviously greater than the adverse effect, then the merger should not be prohibited by the anti-monopoly law.2. The Relationship between the Exception System of Fair Competition Review and the Exemption System of Anti-Monopoly Law. — There are some similarities between the exception system of fair competition review and the exemption system of anti-monopoly law. Specifically including: First of all, both belong to the immunity system in nature. As a legal system involving liability exemption, the main function of the exception system in fair competition review is not to directly exclude the application of the system, and then make the relevant policy-making behavior not subject to the adjustment of the normal system of fair competition review, but mainly to exempt the relevant legal responsibility of policy-making organs. In this sense, it is highly coincident with the legal nature of the exemption system of anti-monopoly law. Secondly, the legitimacy basis of the two is consistent. Theoretically speaking, whether it is the exception system of fair competition review or the exemption system of anti-monopoly law, a large part of the reason for the existence of these two systems is to safeguard national interests and social public interests. Again, the two have some similarities in the specific exemption reasons. In addition to safeguarding national interests, the exemption of fair competition review exception system is based on the need to realize social and public interests. In terms of the exemption system of anti-monopoly law, according to the current relevant provisions of China, the exemption based on social public interest is often involved. For example, China’s cartel exemptions include ‘for the realization of energy conservation, environmental protection, disaster relief and other social and public interests.’Finally, both of them have the function of policy coordination. As far as the exemption system of anti-monopoly law is concerned, it is generally regarded as an important institutional arrangement to coordinate the conflict between competition policy and industrial policy. At present, it is generally believed that the legislative purpose of the exception system of fair competition review is to coordinate the relationship between competition policy and other policies, especially industrial policy. Therefore, from the perspective of policy coordination function, there is no difference between the two systems mentioned above.Certainly, the similarities mentioned above obviously cannot cover the obvious differences between the exception system of fair competition review and the exemption system of anti-monopoly law. The details are as follows:First, the scope of the application is different. In a sense, such a difference in the scope of application is mainly reflected in the different objects. Specifically, the exception system of fair competition review is mainly set up for the policy-making behavior of government agencies and their functional departments; while the object of exemption system of anti-monopoly law is the monopoly behavior implemented by market entities, including monopoly agreement and enterprise merger behavior. Furthermore, the former is to exempt the abstract administrative acts related to public power subjects, while the latter is to exempt the market behaviors of private subjects.Second, the applicable conditions are different. It must be pointed out that, compared with the applicable conditions of the exemption system of anti-monopoly law, the current relevant normative texts put forward more stringent requirements for the application of the exception system in fair competition review. Taking the applicable conditions of the exception system of fair competition review and the exemption system of monopoly agreement as an example, in addition to meeting the common requirements such as the corresponding purposeful requirements and not producing the effect of severe exclusion of restricted competition, the current relevant systems also set the requirements of the specific application of the exception system in fair competition review, such as limits of time, explanation obligation and regular evaluation. Obviously, although both belong to the immunity system, they are different in terms of specific application conditions.Third, the subject of the application is different. In the field of fair competition review, based on the current relevant provisions, the implementation mechanism established is ‘self-examination’, that is, an organization with the function of managing public affairs authorized by administrative agencies and laws and regulations-policy-making agencies as the main body of the review. In this regard, the application subject of the exception system in fair competition review is the policy-making organ. Correspondingly, the applicable subject of the exemption system of anti-monopoly law presents certain complexity. As far as the exemption of monopoly agreement is concerned, China adopts the mode of exemption according to law, so long as the operator can prove that the agreement belongs to the exemption situation, the agreement cannot apply the prohibitive provisions of anti-monopoly law on monopoly agreement. At this time, the applicable subject of monopoly agreement exemption is usually the operator. Of course, in some cases, whether the monopoly agreement conforms to the exemption situation may also be included in the anti-monopoly law enforcement procedures or even judicial procedures. At this time, the applicable subject of monopoly agreement exemption is mainly the anti-monopoly law enforcement agencies or judicial organs. As far as the exemption of business combination is concerned, the application of the exemption should be submitted to the specialized anti-monopoly law enforcement agency and examined accordingly. Fourth, the purpose of public interest is different. At the macro level, the main legislative intention of applying the exception system of fair competition review and the exemption system of anti-monopoly law is to safeguard the public interest. However, from the micro level, there are some differences between the two. In a word, according to the current relevant provisions, the applicable goal of the exception system of fair competition review is mainly to safeguard the social and public interests with non-economic attributes, such as poverty alleviation and development, disaster relief, energy and resource conservation, and ecological environment protection; while the applicable objective of the exemption system of anti-monopoly law involves not only the social and public interests of non-economic attributes, but also the interests of non-economic social and public interests. It will involve the social and public interests with the main objective of protecting and promoting market competition and improving economic efficiency.
IV. THE LEGAL ATTRIBUTE OF THE EXCEPTION SYSTEM OF FAIR COMPETITION REVIEWIn the depth analysis of the exception system of fair competition review, it needs not only to effectively grasp its basic concept connotation and internal structure and its relationship with other related systems, but also to have a correct understanding of its legal nature. The legal nature of the so-called fair competition review exception system represents the relevant characteristics and basic attributes of the system at the essential level. Generally speaking, it can be grasped from the following aspects.A. The Limited Dimension of the Universality of Conventional SystemSince Aristotle put forward the classical definition of the rule of law, the universality of law has been regarded as one of the basic elements of the rule of law. As far as the legal system is concerned, Bodenheimer once pointed out that a legal system, as a whole, is a complex composed of general norms and specific acts applicable to the implementation of norms. Needless to say, ‘generality’ refers to universality. From this point of view, universality is one of the basic characteristics of the legal system. Specific to the field of fair competition review, the relevant legal system will inevitably have the corresponding universal characteristics. In addition, the universality of the so-called conventional system of fair competition review is mainly from the perspective of the legal application, which refers to the universality of the application scope, application object and application effect of the conventional system of fair competition review as a legal system arrangement. In a sense, this universality can also be understood as the equal treatment of fair competition review for different types of policy measures.In fact, around the universality of the fair competition review system, the academia has carried out a different perspective on this. For example, from the perspective of the adjustment scope of the law, some scholars mentioned that compared with the limitations of the scope of administrative monopoly regulated by the Anti-Monopoly Law of China, the adjustment scope of the opinions has been expanded to a certain extent, that is, the scope of fair competition review is extended to the administrative regulations and local regulations promulgated by the State Council. Some scholars further mentioned that the target scope of China’s fair competition review system roughly includes the normative documents issued by the national legislature, the normative documents and measures issued by the State Council, the normative documents issued by the local legislature, and the norms issued by the ministries and commissions of the State Council, documents and measures, normative documents and measures issued by local governments, and normative documents issued by the highest judicial authority. From the perspective of review standards, some scholars point out that China’s current fair competition review system takes whether the policy measures have adverse effects on the economic activities of relevant market entities as the judgment standard, and its advantage lies in making the review object of fair competition review system more comprehensive. In short, the universality of such a system is mainly reflected in the broadness of the adjustment object set by the opinions. In addition, there is another point of view trying to explain the relationship between laws and the possible impact. For example, some scholars believe that with the formal establishment of a fair competition review system in China, the direct consequence is that China will build a relatively systematic and complete legal regulation system on administrative monopoly. Specifically, on the one hand, with the implementation of the administrative monopoly regulation system in the anti-monopoly law, the administrative monopoly can be adjusted afterwards; on the other hand, based on the implementation of the fair competition review system, it can restrain and regulate the government’s intervention behavior, and prevent the introduction of policies and measures that have the effect of eliminating the restrictive competition, so as to achieve the prior and in-process supervision and review of the government’s restrictions on competition. Based on the above brief analysis, it is not difficult to see that universality is a significant feature of the application level of the conventional system of fair competition review.However, with the formal establishment of the exception system of fair competition review, the universality of the conventional system in this field will be restricted accordingly. Furthermore, this restriction essentially constitutes a partial denial of the universality of the conventional system of fair competition review. It is mainly reflected in the following aspects: on the one hand, from the perspective of the scope of adjustment of the law, the establishment of the exception system of fair competition review has restricted the original review objects to a certain extent. As mentioned above, under normal circumstances, a policy measure with the effect of excluding and restricting competition will not be introduced, or it needs to be adjusted to meet the relevant requirements. In contrast, when some policies and measures formulated by the government meet the requirements of the existing exception system, even if they may have the effect of excluding and restricting competition, they will still be allowed to be implemented. On the other hand, from the perspective of the relationship between laws, the establishment of the exception system of fair competition review will also restrict the universality of the existing legal regulation system for administrative monopoly.B. The Legalization Dimension of Specific Public PoliciesPublic policy is a relatively broad concept. Generally speaking, public policy refers to the relevant behavior norms and implementation plans of social public affairs, which are formulated by government departments with public power in order to achieve specific political, economic and cultural purposes. On this basis, what is the legalization of public policy? To clarify this concept, we can take ‘two steps’: the first step is to define the legalization; the second step is to define the legalization of public policy. As far as the first step is concerned, in order to accurately grasp the connotation of the concept of ‘legalization’, we must first clarify the concept of ‘legitimacy’ which is closely related to it. In the field of social science, the understanding of legitimacy can be roughly divided into two dimensions: broad sense and narrow sense. From a broad perspective, the concept of legitimacy is mainly used to explore social order, norms or normative system, which is not only limited to the political and legal fields, but also involves a wide range of social fields; Under this cognitive premise, the meaning of legitimacy specifically refers to compliance with certain rules. Legal rules only belong to one of the special rules. It also involves regulations, standards, principles, paradigms, values, logic and other social rules. In the narrow sense, compared with the above-mentioned broad definition of legitimacy, the scope of application of legitimacy will be obviously limited, and it is mainly used to explain the legitimacy of the type of state governance or political order. Therefore, the narrow sense of legitimacy mainly refers to the motivation to urge people to obey certain orders.Based on the above understanding, some scholars have further synthesized and summarized the broad sense of legitimacy and the narrow sense of legitimacy. They think that the common purpose of the two lies in the recognition or acceptance based on the judgment or belief that conforms to certain rules. The so-called ‘legalization’ means to show, declare or prove to be legal, appropriate or legitimate, and the purpose is to recognize or authorize; while ‘legitimacy’ represents the process of connection between active and purposeful establishment and specific norms, so it has obvious subjectivity. Based on this point of view, legalization can also be understood as the maintenance of legitimacy when legitimacy may be denied or questioned.According to Daye’s view, the so-called legalization of public policy can be divided into three main activities according to the order of occurrence: first, to select a policy agreement; second, to seek or establish political support for this proposal; third, to promulgate it as a law. On this basis, some domestic scholars further combined with the manifestation of policy legalization that the legalization of the public policy refers to the process of making all kinds of policy programs obtain the legitimacy status, with social authority and binding nature, which mainly includes the legalization of public policy, the legalization of public policy and the socialization of public policy. The legalization of public policy mainly refers to the process in which public policy obtains the basic legal form through formal legislative procedures, thereby obtaining legal effect and establishing legal authority; The legalization of the public policy refers to the process that the policy obtains its legal status by transforming it into other social norms with legal effect; the socialization of public policy refers to the process that the policy is generally followed by people through non-legal social norms. In fact, from the perspective of the legal subject involved, such policy legalization can be divided into: Legalization of public policy in the legislative process, legalization of public policy in law enforcement procedure and legalization of public policy in the judicial process. Among them, the legalization of public policy in the legislative process includes the legalization of public policy and the legalization of public policy, that is, the process in which public policy obtains legal forms at different levels but with legal effect through the legislative process; the legalization of public policy in law enforcement procedure refers to the process that public policy is obtained by administrative organs through law enforcement activities. The legalization of public policy in the judicial procedure is the process of establishing the legal effect of public policy through judicial procedure.From the perspective of a fair competition review system, it is closely related to public policy. Specifically, in terms of the object of review, a fair competition review system refers to public policies related to government intervention in economic activities. In a word, whether it is the rules, normative documents and other policies and measures related to the economic activities of market entities, such as market access, industrial development, investment promotion, bidding, government procurement, business behavior norms, and qualification standards formulated by the policy-making organs, or administrative regulations, other policies and measures formulated by the State Council and local regulations, all of which can be applied in practice. It is included in the category meaning framework of public policy. In terms of review objectives, as pointed out by scholars, in a general sense, a fair competition review system aims to maintain and promote fair competition in the market by examining policies and measures that have the effect of excluding and restricting competition, so as to ensure the quality of public policies closely related to the market economy.Further combined with the fair competition review exception system, this special system is also closely related to public policy. In other words, the exception system of fair competition review is an institutional arrangement of legalization of specific public policies in nature. The above-mentioned legalization of specific public policies involves the following three aspects: Firstly, the legalization of public policies at the legislative level. It can be seen from the above that, according to the current system, if the government’s current or proposed public policies involving the field of the market economy have the effect of excluding and restricting competition, they cannot be introduced in principle, or they need to be adjusted and meet the relevant requirements. However, in the context of the establishment of the exception system of fair competition review system, whether the exception rules in the opinions mentioned above or the exception rules further refined in the Interim Implementation Rules, the common role of both is to establish the public policies involving specific fields or specific purposes through legislation, so as to give them corresponding legal effect. Of course, it must be pointed out that the legalization of public policies in such a legislative process is mainly aimed at some public policies which have achieved broad social consensus and have relatively stable contents to establish their legal effects. Secondly, the legalization of public policies at the law enforcement level means that some public policies are given legal status through the specific application procedures of the exception system of fair competition review. Since the current fair competition review exception system only initially establishes the legalization of some specific public policies from the macro level through legislation, considering that its specific content provisions are abstract, open and interpretable, whether the public policy of the relevant government constitutes an exception and what kind of exception it constitutes in practice, can only be determined after further specific review by the review authority. Finally, the legalization of public policy at the judicial level is to establish the legal effect of public policy through specific judicial procedures. Judge Cardozo once said every judicial decision is a reflection of the problem and an answer to the problem. Therefore, the importance of judicial procedures is self-evident. Specifically, in the practice involving the application of the exception system of fair competition review, the relevant review authorities obviously cannot ensure that all the application cases of the exception system are accurate. In some cases, as the main body of the review, the administrative organization may inevitably have some omissions and deviations. At this time, it is particularly necessary to allow the intervention of judicial proceedings to correct the wrong practices of the review authority. It is for similar reasons that some domestic scholars put forward their own suggestions for improvement, that is, for the public policies that violate the standards of fair competition review and the government and departments whose review has not been implemented in time, the relevant parties whose rights and interests have been damaged should be given the right to file administrative proceedings in the people’s court. In this way, the public policies involved in specific cases can also obtain the corresponding legal effect through judicial procedures.To sum up, the exception system of fair competition review is an institutional arrangement for the legalization of specific public policy in nature, which involves the legalization of public policy at the legislative level, the legalization of public policy at the law enforcement level and the legalization of public policy at the judicial level. The legalization of public policy at the legislative level is a preliminary form of legalization, while the legalization of law enforcement and judicial level is to establish the legal status of relevant public policies through specific cases.C. On the Exemption Dimension of Government’s Restrictive Competition BehaviorThere is a close relationship between the exception system of fair competition review and the government’s restrictive behavior. As we all know, China’s fair competition review system takes the regulations, normative documents and other policies and measures related to the economic activities of market entities formulated by the government as the object of review. Through the corresponding competition impact assessment of these policies and measures, we can gradually clear up and abolish the regulations and practices that hinder the national unified market and fair competition, and ultimately aim to build and maintain good competition order and market environment. From the perspective of reality, a large part of the policies and measures formulated by policy-making organs that have the effect of excluding and restricting competition are administrative monopoly behaviors involving the abuse of public power. According to the general understanding, the so-called administrative monopoly behavior, also known as administrative restrictive competition behavior, refers to the behavior of the government and its subordinate institutions abusing administrative power to exclude restricted competition. According to the classification of administrative acts in administrative law, an administrative monopoly can be further divided into the abstract administrative monopoly and specific administrative monopoly. Abstract administrative monopoly is a kind of behavior restricting competition by means of formulating administrative regulations and general normative documents. It includes two kinds of situations: ‘administrative legislative act’ and ‘general normative document’. From this dimension, a fair competition review system is a preventive measure against administrative monopoly in nature. More precisely, it mainly aims at abstract administrative monopoly.Based on the above considerations, some scholars further pointed out that from the perspective of legislative purpose, China’s choice to introduce the fair competition review system in a timely manner also meets the needs of legal governance of administrative monopoly. Specifically, it has the following performance: from the perspective of the scope of regulation, compared with the limitations of the administrative monopoly system in the Anti-Monopoly Law of China, the fair competition review system has made further expansion, so as to make its adjusted object more comprehensive. In this sense, it should be recognized that this review system is highly interlinked with the high-level regulation of administrative monopoly. From the perspective of intervention time dimension, different from the post regulatory characteristics of anti-monopoly law, fair competition review is a typical prior regulation, that is, the relevant policies and measures formulated by the administrative organs should be reviewed in advance through legal procedures; otherwise they cannot be promulgated. In this regard, such a review system is undoubtedly highly consistent with the prior regulation of abstract administrative monopoly.It must be pointed out that, in most cases, although the implementation of the conventional system of fair competition review can effectively reduce the adverse impact of the government’s acts of restricting competition, especially the abstract administrative monopoly, on the competitive mechanism, so as to promote the healthy operation of the market economy, the problem is that the internal composition of the government’s acts of restricting competition is not unitary, and there are many problems. It also presents the characteristics of diversity and complexity. It is undeniable that as an illegal act of abusing administrative power, the abstract administrative monopoly involved in the government’s competition restriction has serious market harm, so it is justifiable that it is strictly regulated by the relevant legal system. However, in some cases, although some government regulation acts may restrict competition, they cannot be simply classified as abuse of administrative power; On the other hand, restrictions imposed by the government on market competition are sometimes inevitable, such as government regulation in natural monopoly industries, financial markets, environment and pharmaceuticals. Under this premise, it is obviously necessary to consider the certainty and flexibility of the system text when designing the relevant system, so as to meet the needs of dual legal adjustment in general and special situations. It is in this dimension that some scholars mentioned that in some special cases, if only the general provisions of prohibiting and preventing abstract administrative monopoly involved in the fair competition review system are applied unilaterally, it may not conform to the original legislative intention of this review system, and may even bring about counterproductive legal consequences; Furthermore, in a more special case, even if the application of the above-mentioned general provisions conforms to the original intention of the establishment of the fair competition review system, it may lead to excessive infringement of other types of legal interests protected by law, especially the phenomenon that may damage the non-economic public interests, and finally leads to the situation of over correction. In this regard, the establishment of the corresponding exception system in the field of fair competition review is not only based on the evidence, but also can be regarded as the exemption system arrangement for the government to restrict competition.The timely implementation of the fair competition review system is a new measure to implement the basic status of competition policy after the promulgation of the Anti-Monopoly Law, which is of great significance. However, as an organic part of the whole review system, the theoretical value and practical significance of the fair competition review exception system should not be ignored. In this way, the theoretical research on the exception system of fair competition review can not only stay at the standard text level, but also pay attention to the deeper legal analysis approach. In fact, through such a jurisprudential dimension analysis, it can not only effectively clarify the basic meaning, normative composition, the distinction between the system related to the anti-monopoly law and its legal attributes, but also help people to understand the system itself more comprehensively.
