反垄断中止调查与终止调查制度:契约化还是行政化

Mechanism of Suspension and Termination of Investigation in Antitrust Enforcement of China:Contractualization v.Administrationization

为提高效率,许多国家或地区将契约机制引入到反垄断执法制度中。我国反垄断中止调查与终止调查制度虽然具有一定的契约化特征,但行政化色彩仍十分浓厚。基于和解正义、效率、国情等方面的考量,其应扩大契约化的因素,减少行政化因素。故此,我国应转变"中止调查决定"加"终止调查决定"的二元结构为"终止调查决定"的一元结构,赋予相对人缔约救济权和情事变更请求权,同时,应以违约责任的多种形式强化承诺履行保障机制。

In order to enhance efficiency, lots of developed countries or areas introduce contractual rules to antitrust en- forcement system, which is reflected by the mechanism of suspension and termination of investigation in anti- trust enforcement of our country. However, the mechanism of our country said above has overfull qualities of administration. Although it can＇ t get rid of the two side features, considering the factors of the settlement jus- tice, enforcement efficiency and the civilization construction, the mechanism should expand qualities of contract and reduce qualities of administration. Hence, the right way is to change the mechanism of suspension and ter- mination of investigation into a new mechanism of termination of investigation, give the investigated the rights to relieve and apply for modification of the decision of cessation of investigation when material changes have taken place in respect of the facts, and make the safeguard measures for performance of commitments more effective bv introducing the forms of liabilities for breach of contract.