of anti-monopoly law enforcement is not to punish and deter, but to ensure that operators can abide by competition rules and achieve the value objectives pursued by anti-monopoly law. Anti-monopoly compliance work can enhance the understanding of anti-monopoly law by operators, and promote operators to accept the concept of anti-monopoly and operate in compliance with regulations. In order to better guide and support operators to establish and improve the anti-monopoly compliance management system, enhance their ability to prevent, control and deal with anti-monopoly compliance risks, and foster a culture of fair competition, the State Council's Anti-Monopoly and Anti-Unfair Competition Commission promulgated the newly revised Guidelines for Operators'Anti-Monopoly Compliance (hereinafter referred to as the Guidelines) at the end of April 2024. Through the provisions of 41 articles in six chapters, namely, general provisions, compliance management organizations, compliance risk management, compliance management operation and guarantee, compliance incentives and supplementary provisions, the Guidelines clarify the compliance respo nsibilities of enterprise anti-monopoly compliance governance institutions, compliance management principals and leading departments, business and functional departments. It lists the compliance risk management, compliance management operation and guarantee of various monopolistic behaviors, and intersperses reference examples to help operators understand the gist of compliance work, and adds new provisions on compliance incentives in the form of a special chapter. The revision and promulgation of the Guidelines reflects that China's anti-monopoly law enforcement agencies pay more attention to guiding operators to consciously abide by laws and regulations while normalizing supervision, and is also an important measure to build and improve the competition compliance governance system in China.
First, the revision and promulgation of the Guidelines indicate that China's competition compliance governance system is becoming more and more perfect
. Anti-monopoly compliance guidelines and guidelines such as "Guidelines for Overseas Anti-monopoly Compliance of Enterprises" and "Guidelines for Anti-monopoly Compliance of Concentration of Operators" have been issued successively, and China's competition compliance governance system has been formed and continuously improved.
The revised Guidelines have more detailed, comprehensive and practical provisions on anti-monopoly compliance management, which is very beneficial to promoting and guiding operators to establish and improve anti-monopoly compliance management in a more standardized manner, and greatly enriches the content of China's competition compliance governance system. For example, Chapter II of the Guidelines provides a model for enterprises to establish multi-level compliance management organizations through specific provisions on compliance management responsibilities of compliance governance bodies, compliance management leaders, compliance management leading departments, business and functional departments, and outlines the anti-monopoly compliance governance framework by clarifying the responsibilities of various departments. It also highlights that the business department of the operator is the first line of defense for compliance, the compliance management department and related personnel are the second line of defense, and the internal audit, legal and internal control departments are the third line of defense for the anti-monopoly compliance management organization system. For another example, Chapter III of the Guide provides for compliance risk management such as risk assessment, risk reminder, risk identification, legal liability reminder, overseas risk reminder and risk disposal; Chapter IV provides for anti-monopoly compliance review, consultation, reporting, training, commitment and guarantee, rewards and punishments, internal supervision mechanism, external supervision mechanism, management evaluation and improvement, and information construction. Compared with the Guidelines before the revision, the above amendments can better guide and encourage operators to formulate anti-monopoly compliance management systems suitable for enterprises according to market competition and industry characteristics, based on their own business scope, governance structure and business scale, and provide operators with more complete and specific operational suggestions through explanations and examples.
2. The highlight of the revision of the Guide is the exploration
of the incentive mechanism of anti-monopoly compliance in China. Compliance with the provisions of anti-monopoly law is the obligation of enterprises, and anti-monopoly compliance is the responsibility of enterprises. However, the positive external effects of enterprise anti-monopoly compliance, the legislative objectives of anti-monopoly and the functions of anti-monopoly law enforcement agencies determine that anti-monopoly law enforcement agencies must do something to promote competition compliance. In recent years, China's anti-monopoly law enforcement agencies pay attention to the organic combination of rigid law enforcement and flexible supervision, and pay more and more attention to preventive supervision. With the introduction and application of interviews, "three letters and one letter" and other systems, anti-monopoly law enforcement agencies are striving to promote enterprises to consciously abide by competition laws and regulations through guidance, assistance and compliance incentives, so as to achieve self-regulation and self-restraint. To better safeguard fair competition in the market. As far
as enterprise compliance is concerned, the incentives in public law usually include conviction and sentencing, non-prosecution mechanism, administrative reconciliation system and administrative commitment system in criminal law, which can be constructed not only around unit responsibility, but also around individual responsibility, and how to establish and implement effective anti-monopoly compliance for enterprises. All jurisdictions are exploring. The greatest highlight of the revision of China's Guidelines is the provision of "compliance incentives" in the form of a special chapter, which proposes that the anti-monopoly law enforcement agencies may consider the construction and implementation of the anti-monopoly compliance management system of operators as appropriate when investigating and dealing with violations of the anti-monopoly law, and that the implementation of the anti-monopoly compliance management system of operators should be taken into account. Compliance incentives before investigation, compliance incentives in the commitment system, compliance incentives in the leniency system, and compliance incentives in the discretion interval of fines, which reflects the importance and encouragement of anti-monopoly law enforcement agencies to the establishment of anti-monopoly compliance management system for enterprises.
Of course, anti-monopoly compliance should not be a "paper plan", but an effective anti-monopoly compliance. If an enterprise only establishes an anti-monopoly compliance mechanism in form, it is not enough to obtain compliance incentives. Only when it meets a number of standards and conditions for the identification of effective anti-monopoly compliance by anti-monopoly law enforcement agencies, can it obtain compliance incentives. For this reason, in order to prevent the abuse of compliance incentive mechanism, the Guidelines stipulate that if an operator applies for compliance incentive, the anti-monopoly law enforcement agency shall conduct a substantive review of the construction and implementation of the operator's anti-m onopoly compliance management system from the aspects of perfection, authenticity and effectiveness, and at the same time, it also stipulates that the anti-monopoly law enforcement agency shall not give it. These circumstances mainly include failure to pass the substantive review of compliance; major changes in the facts on which the decision of substantive review of compliance is based; incomplete or untrue information provided during the compliance inspection; repeated violations of the Anti-monopoly Law, etc. Special attention should also be paid to the fact that when enterprises provide evidence to prove that they meet the applicable conditions of anti-monopoly compliance incentives, the Guidelines stipulate that anti-monopoly law enforcement agencies "may" decide whether to apply anti-monopoly compliance incentives, rather than "should" apply anti-monopoly compliance incentives, so as to make China's anti-monopoly compliance incentives. It can also form an interactive coordination with the anti-monopoly law enforcement work and jointly achieve the legislative objectives of the anti-monopoly law.
3. Twenty-two new reference examples in the Guide provide best practice samples
for enterprise anti-monopoly compliance. The anti-monopoly compliance system is in line with the principle of "spending a certain amount of public and private resources to prevent and deter illegal acts." It is necessary to explore a new regulatory method to promote fair and effective competition through the active cooperation of enterprises, and the idea that "one point of prevention in the field of anti-monopoly is better than one point of relief", through the formulation and issuance of anti-monopoly compliance guidelines or guidelines, to guide enterprises to carry out anti-monopoly compliance work, which can make up for anti-monopoly law enforcement. It can protect market competition to the greatest extent, further optimize the anti-monopoly supervision mechanism, realize the whole chain and cycle supervision of anti-monopoly before, during and after the event, and improve the accuracy and efficiency of anti-monopoly supervision.
For enterprises, anti-monopoly compliance is the most basic tool for operators to prevent and restrain anti-monopoly legal risks, and even can be said that anti-monopoly compliance is an important form of "self-regulation" for enterprises. The internal motivation for enterprises to independently promote anti-monopoly compliance work is mainly manifested in two aspects, one is the fear of illegal acts being discovered and punished by law, and the other is the endogenous sense of normative obligation. The empirical study shows that anti-monopoly compliance work can effectively reduce the frequency of "irrational" competition violations, alleviate the pressure of anti-monopoly law enforcement to a certain extent, save anti-monopoly law enforcement resources, and improve the efficiency of anti-monopoly law enforcement. However, the anti-monopoly compliance work is highly professional and difficult, and enterprises urgently need professional guidance when carrying out anti-monopoly compliance work. The revision
of the Guidelines attaches great importance to guidance and operability, and tries to provide practical guidance for the establishment and implementation of the anti-monopoly compliance management system for operators. Twenty-two reference examples in the Guidelines are aimed at the establishment of compliance management institutions, anti-monopoly compliance management system, risk identification and assessment, risk reminders, compliance risk identification of monopoly agreement behavior, compliance risk identification of abuse of market dominance behavior, and compliance risk identification of concentration behavior of operators. Similar to the operation manual of anti-monopoly compliance, it is to guide operators to establish anti-monopoly compliance management system by hand.
In a word, anti-monopoly compliance is an important part of modern corporate governance, and the revision and promulgation of the Guidelines can better guide enterprises to enhance their awareness and ability of anti-monopoly compliance in light of their own reality, and can encourage enterprises to become model observers of anti-monopoly law and practitioners of anti-monopoly compliance. In this way, we can better maintain fair competition in the market and optimize the business environment of the market, and help build a unified national market and promote the high-quality development of China's economy.
