摘要(Abstract)：
许多国家和地区的反垄断法实践表明,宽恕制度已经成为规制卡特尔的重要工具,有助于更好地发现并查处卡特尔。目前我国反垄断法已经初步建立了宽恕制度,但相关立法仍有待完善,同时还需要进一步保障其实施效果。本文针对我国宽恕制度需要完善的几个重要问题比较考察美国、欧盟、德国、日本等国家和地区的相关规定,分析其对我国的借鉴作用,并就如何完善我国宽恕制度提出相应建议。
关键词(KeyWords)：
Abstract:
Keywords:
基金项目(Foundation):
作者(Author): 时建中;侯文婷;Su Guimei;
Email:
参考文献(References)：
- 1 There are many expressions for the definition of leniency program and all of them are similar.The definition in this article is defined by Shi Jianzhong,see SHI JIANZHONG,ANTI-MONOPOLY LAW-CODE INTERPRETATION AND THEORETIC ANALYSIS,at 435(Renmin University Press,2008).
- 2 Here application conditions of leniency program include many specific factors like subject qualification,application time,and behavior condition and evidence requirement.
- 3 There is little study achievement about this issue.In Jin Meirong's book Study on Regulation of Hard Cartel,relations between leniency program and civil lawsuits are discussed.Besides,there are two papers on this topic.One is Civil Compensation Damages'Influence on Enforcement Effect of Leniency Program written by Ma Lizhao and Bi Jinping.The other one is Shi Jinjing's master dissertation Relations and Conflicts-Coordination between Leniency Program and Civil Damages.
- 4 WANG YUHUI,REGULATION ON MONOPOLY AGREEMENT,at 303(Law Press 2010).In this book,Wang Yuhui points out that“Besides profitable organizations,undertaking also refers to individuals involved in monopoly agreement,like leaders,staff,agents and so on.Thus leniency program applies to organizations and individuals involved in agreement.”
- 5 European Commission,Commission Notice on Immunity from Fines and Reduction of Fines in Cartel Cases(2006/C 298/11),Official Journal of the European Union,8th Dec.2006,ⅡA(8)&(11),ⅢA(26).
- 6 Enterprises which took steps to coerce other undertakings to join the cartel or to remain in it are never eligible for immunity from fines.This is because of the subjective culpability and harmful consequences of such behaviors.Yet they may still qualify for a reduction of fines if it fulfills certain requirements.Thus“negative subject”here specifically means no qualification for immunity from fines,not for leniency program.
- 7 Jin Meirong,On Application Time of Lenlency Program in Hard Cartel Politics and Law Forum,3 Politics and Law Forum 141,141-149,(2008).
- 8 Gary R.Sparling,D.Jarrett Arp&Alexandra J.Shepard,Making The Decision:What to do When Faced with International Cartel Exposure:Developments Impacting the Decision in 2006,the American Bar Association Section of Antitrust Law 54th Antitrust Law Spring Meeting,Washington,30th March 2006,5(2006).
- 9 NOTICE OF THE BUNDESKARTELLAMT ON THE IMMUNITY FROM AND REDUCTION OF FINES IN CARTEL CASES,LENIENCY PROGRAMME,MARCH 7,2006,at http://www.bundeskartellamt.de/wEnglisch/download/pdf/06_Bonusregelung_e.pdf(Last visited on August 11,2013).
- 10 U.K.OFFICE OF FAIR TARDING,OFT'S GUIDANCE AS TO THE APPROPRIATE AMOUNT OF A PENALTY,at 14-15(U.K.Office of Fair Trading,Competition Law 2004).
- 11 R.HEWITT PATE,ASSISTANT ATTORNEY GENERAL OF ANTITRUST DIVISION OF U.S.DEPARTMENT OF JUSTICE,INTERNATIONAL ANTI-CARTEL ENFORCEMENT,ADDRESS BEFORE THE 2004 ICN CARTELS WORKSHOP,Sydney,Australia,21 November 2004,at http://www.usdoj.gov/atr/public/speeches/206428.pdf(Last visited on August 11,2013).
- 12 Yet there is no legislation modification in several countries like New Zealand,Japan and Sweden.Besides,it is necessary to clear that the watershed of inspection launch is important to complete immunity,but partial immunity like reduction of fines are not limited.
- 13 U.S.v.F.Hoffmann-La Roche Ltd.,6 Trade Reg.Rep.(CCH).
- 14 This article indicates that application after authorities'inspection is allowed,but there are more additional conditions,such as only the first reporter may be granted complete immunity.
- 15 It includes:a detailed description of the alleged cartel arrangement;the name and address of the legal entity submitting the immunity application as well as the names and addresses of all the other undertakings that participate in the alleged cartel;information on which other competition authorities,inside or outside the EU,have been approached or are intended to be approached in relation to the alleged cartel.
- 16 Donald Baker,Revising History-What Have We Learned About Private Antitrust Enforcement That We Would Recommend To Others?,16 Loy.Consumer L.Rev.383,403(2004).
- 17 The“purposes”here is explained in the below article 34:“In accordance with the Commission Notice on rules for access to the Commission file,access to the file is only granted to the addressees of a statement of objections on the condition that the information thereby obtained may only be used for the purposes of judicial or administrative proceedings for the application of the Community competition rules at issue in the related administrative proceedings”.
- 18 Ma Lizhao and Bi Jinping,The Influence of Civil Damages on Implementation of Leniency Program in Anti-monopoly Law,10 Shandong Social Science 77,77-88(2011).
- 19 Supra note 9.
- 20 Donald Baker,supra note 16,402.
- 21 Daniel J.Fletcher,The Lure of Leniency:Maximizing Cartel Deterrence in Light of La Roche v.Empagran and The Antitrust Criminal Penalty Enhancement and Reform Act of 2004,15 Transnat'l L.&Contemp.Probs.341(2005-2006).
- 22 GREEN PAPER-DAMAGES ACTIONS FOR BREACH OF THE EC ANTITRUST RULES,at http://europa.eu.int/comm/competition/antitrust/others/actions_for_damages/gp_en.pdf(Lastvisited on August 11,2013).
- 23 WHITE PAPER-DAMAGES ACTIONS FOR BREACH OF THE EC ANTITRUST RULES,at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0165:FIN:EN:PDF(Last visited on August 11,2013).
- 24 THE ORDER OF THE NATIONAL DEVELOPMENTAL AND REFORM COMMISSION,at http://www.gov.cn/flfg/2011-01/04/content_1777998.htm(Last visited on August 11,2013).
- 25 Id.
- 26 Transparency and certainty are important standards to measure leniency program.It is stated in the REPORT ON LENIENCY PROGRAMS TO FIGHT HARD CARTELS,at 2,DAFFE/CLP(2001)13 ,at http://www.oecd.org/dataoecd/49/16/2474442.pdf(Last visited on August 11,2013).
- 27 JIN MEIRONG,STUDY ON REGULATION OF HARD CARTEL,at 280(University of International Business and Economy Press,2009).
- 28 To protect interests of private victims,limitation here is just imposed to cartel members being granted leniency,not including other cartel members.
