反垄断法罚款与没收违法所得并处问题研究

A Study of Coexistence of Fines and Confiscating Illegal Incomes Based on Anti-monopoly Law

作为反垄断法行政责任体系的重要组成部分,罚款与没收违法所得可谓是规制垄断违法行为的利器。然而,执法实践中罚款与没收违法所得结合适用的游移不定,与立法层面的并处关系不相一致。罚款与没收违法所得结合设计旨在实现对垄断违法行为的强力规制,但违法所得认定的现实困难,造成了立法与实践之间的背离;而单处罚款不仅遗漏了处罚内容,而且对反竞争行为的威慑力不足。解决罚款与没收违法所得并处的不确定性问题,畅通并处之路,执法机关要明确适用没收违法所得的态度。另外,我国应尽快出台指南,为没收违法所得的认定提供具体操作方法,同时完善罚款制度,使二者更好地结合运用,从而充分发挥反垄断法处罚的威慑效果。

As an important part of the administrative responsibility system in the antitrust law,the fine and the confiscation of illegal incomes can be considered as a powerful weapon to regulate the monopoly. However,the combination of fines with confiscation of illegal incomes is vacillating in law enforcement practice,which is inconsistent with the coexistence relationship in the legislative level. The combination of fines and confiscation of illegal proceeds is designed to achieve strong regulation on monopolistic offenses,but the real difficulties in determining illegal incomes have led to a departure from legislation and practice; a single fine not only omits the penalty content,but also lacks deterrence to monopoly behavior. In order to solve the uncertainty on the coexistence between fines and confiscating illegal incomes and to remove the obstacles,law enforcement agencies should clear attitude in applying the confiscation of illegal income. In addition,China should introduce guidelines as soon as possible to provide specific means for confiscating illegal income. At the same time,the fine system could be improved,so that these two can combine better than before and give full play to the deterrent effect in the anti-monopoly punishment.