Be wary of industry associations to participate in monopoly

◎ Text "Fighter" magazine all media reporter Li Yunshi

On July 22, 2022, the website of the State Administration of Market Supervision and Administration released news: The Henan Provincial Market Supervision and Administration Bureau organized some credit assessment enterprises for the organization of the Henan Provincial Credit Construction Promotion Association to reach and implement a monopoly agreement. The penalty was 300,000 yuan and ordered to stop illegal acts; the 30 credit evaluation member units were punished at 1%of the previous year. The total amount of related penalties exceeds 520,000 yuan. As soon as the news came out, the industry association's illegal operation and administrative monopoly issues caused social attention. Recently, the reporter of the "Legal" interviewed financial expert Liu Gang, Yuan Quan, a lawyer of Beijing Strategy Law Firm, Wang Zongyu, associate professor of the School of Law School of Renmin University of China, and Chen Bing, deputy dean of Nankai University Law School.

Industry Association has become a monopoly leader

"Industry Association should be the whistle and supervisor who avoid industry monopoly. But in this case, due to its own status and internal management system loopholes, the lack of compliance management system, the industry association has become the leader of industry monopoly leaders And the organizer. "Liu Gang told reporters that as early as May 14, 2020, the Henan Provincial Market Supervision and Administration Bureau was reported to the Henan Provincial Credit Construction Promotion Association for some credit assessment enterprises suspected of reaching and implementing the monopoly agreement.

The survey results show that from 2015 to 2019, the Organization of the Henan Credit Construction Promotion Association Organization Certification Center Co., Ltd., Henan Zhongtai Credit Evaluation Co., Ltd., Xincheng Credit Management Co., Ltd. and other member units have reached the price of fixed commodity prices The monopoly agreement has eliminated and restricted market competition, and harmed consumer interests and social public interests.

Yuan Quan introduced to reporters in detail. In 2015, the Henan Provincial Credit Construction Promotion Association published the "Henan Credit Evaluation Industry Self -discipline Convention" to the member units through the official website. Essence In November 2018, the Henan Provincial Credit Construction Promotion Association convened 31 member units involved in the case to convene a working conference to discuss and pass the "Henan Provincial Credit Service Industry Standardous Development Self -disciplinary Convention". The convention fixed the price change between credit evaluation services with competitive operators. In June 2019, the Henan Provincial Credit Construction Promotion Association convened 43 member units involved in the case to hold the third three councils to discuss and adopt the "Convention on the Self -discipline of the Henan Social Credit Service Institution Industry". The convention fixed the price change between credit evaluation services with competitive operators. "The three actions of the Henan Provincial Credit Construction Promotion Association all violated Article 13, paragraph 1 of the Anti -Monopoly Law, and prohibited operators with competitive relationships to reach the following monopoly agreement: a monopoly agreement for fixed or changing commodity prices." Yuan Quan said.

Dual management is disadvantaged

The reporter consulted the "China Annual Report of the China Anti -Monopoly Law Enforcement" issued by the State Administration of Market Supervision in the past two years. It was found that in 2020, China investigated and dealt with 7 monopoly agreements in the industry associations, and 92 companies involved in the case were implemented with an economic penalty of 77.64 million yuan. In 2021, an anti -monopoly law enforcement agency investigated and dealt with the Fengcheng pre -mixed concrete association and its member enterprises reached and implemented a monopoly agreement, Zibo Lianhe and Cement Enterprise Management Co., Ltd. and related enterprises reached and implemented a monopoly agreement. The business enterprise reached and implemented a monopoly agreement, involving 1 industry association and 18 companies. The total penalties were not as fine as 537 million yuan, accounting for about 1/3 of the annual monopoly agreement cases.

"Industry Association refers to non -profit organizations that are voluntaryly composed of competitors in the same industry to promote common interests. They have basic functions such as communicating with the government, organizing information exchanges, and publishing industry standards." Wang Zongyu introduced to reporters that the industry associations The development and growth of the development of social and economic level, the level of government governance, and the development of the public's rights are inseparable.

In the early days of reform and opening up, the Chinese Industry Association was established in order to undertake government functions. It mainly exercised administrative functions and highly rely on the government in terms of organizational management and personnel funds. Therefore, it is also known as the "within the system" industry association. Over time and market demand, China's industry associations and government support created by entrepreneurs and government -led industry associations.

However, due to the lack of legal norms to meet the rapid development of socio -economy, the current laws and regulations have difficulty to effectively regulate the relevant activities of the industry associations. In addition, the industry association's autonomy is still limited, and it cannot fully represent the interests of industry operators, and it has not achieved completely decoupled with the government.

"For a long time, the my country Industry Association has implemented a management system with dual management. This requires the establishment of the industry association to be reviewed and approved by the competent business department. One industry for a while, one place for a while. "

Wang Zongyu told reporters that the double management of the industry association is conducive to the improvement of the authority of the industry association and effectively play a management role. But there are also disadvantages. "Many industry associations have been born from the administrative authority, and the heads of the administrative department also hold the leadership positions of the industry associations and chambers of commerce, and the political associations are not distinguished." Therefore, the dual management system has led to the industry associations to have strong administrative dependence.

As a result, some industry associations are involved in administrative monopoly. Chen Bing said: "Industry Associations are involved in administrative monopoly in two cases. One is that through government authorization, the industry associations actively reach monopoly; the other is that the industry association reached a monopoly based on the administrative department's intention and became an intermediary that the administrative department reached administrative monopoly." New antitrust French strict control industry participates in monopoly

On August 1 this year, the newly revised "Anti -Monopoly Activity Law of the People's Republic of China" (hereinafter referred to as the "New Anti -Monopoly Law") was officially implemented. Compared to the old version of the anti -monopoly law that had been implemented for 14 years, the New Law was amended 36. The fair competition review system for regulating administrative law enforcement behaviors first appeared in the antitrust law.

Chen Bing said that Chapter 5 of the New Anti -Monopoly Law has made detailed restrictions on administrative monopoly. These include the abuse of administrative power elimination and restriction of competition.

In addition, the New Anti -Monopoly Law also clearly stipulates the competition of the industry association in accordance with the law. Article 14 requires that "the industry association shall strengthen the industry's self -discipline, guide the operators of the industry to compete in accordance with the law, operate compliantly, maintain market competition order in compliance, and maintain the order of market competition order. "". This article emphasizes that industry associations should play an active role in maintaining market competition order, especially compliance management obligations. Article 21 stipulates that: "Industry Associations must not organize operators in the industry to engage in monopoly behaviors prohibited in this chapter." From the perspective of the legislative system, this article emphasizes that the industry associations are prohibited from organizing the industry's operators Behavior.

As for the legal responsibility stipulated by the industry association that violates the prohibition of monopoly agreement, the New Anti -Monopoly Law clearly states that "the industry association violates the provisions of this Law and organizes the operator of the industry to reach a monopoly agreement shall Law enforcement agencies are ordered to make corrections and may be fined below 3 million yuan; if the circumstances are serious, social group registration management organs can revoke the registration in accordance with the law. "

Editing ｜ Cui Xiaolin

Edit ｜ Huiningning

School pair ｜ Zhang Bo Zhang Xuehui

This article is published in the "Legal person" magazine in August 2022 Total 222 Issue 222 Insertament Governance Section

- END -