2007年8月30日第十届全国人民代表大会常务委员会第二十九次会议通过 2007年8月30日主席令第六十八号公布 2008年8月1日起施行
Anti-monopoly Law of the People's Republic of
Presidential Decree No. 68
（2007年8月30日第十届全国人民代表大会常务委员会第二十九次会议通过 2007年8月30日主席令第六十八号公布 2008年8月1日起施行）
(Adopted at the 29th Meeting of the Standing Committee of the Tenth National People's Congress on August 30, 2007 and promulgated by Order of the President  No.68 on August 30, 2008)
第一章 总 则
Chapter 1 General Provisions
Article 1 This Law is formulated for the purposes of preventing and curbing monopolistic activities, protecting fair market competition, raising economic efficiency, safeguarding the interests of consumers and the public interest, and promoting healthy development of socialist market economy.
Article 2 This Law shall apply to monopolistic activities in economic activities in the People's Republic of China; this Law shall apply to monopolistic activities outside the People's Republic of China which eliminate or restrict competition in domestic markets.
Article 3 For the purposes of this Law, "monopolistic conducts" include:
1. monopolistic agreements between operators;
2. abuse of dominant market position by operators; and
(III) Concentration of undertakings which has or may have the effect of eliminating or restricting competition.
Article 4 The State formulates and implements competition rules which correspond to the socialist market economy, improves macro-control, and improves upon a unified, open, competitive and orderly market system.
Article 5 Undertakings may implement concentration pursuant to the law through fair competition, voluntary alliance, expand their scale of business and raise market competitiveness.
Article 6 Business operators with a dominant market position shall not abuse their dominant market position to eliminate or restrict competition.
Article 7 With regard to the industries controlled by the State-owned economy and concerning the lifeline of national economy and national security or the industries implementing exclusive operation and sales according to law, the State protects the lawful business activities of the business operators therein. The State also, according to law, regulates and controls their business activities and the prices of their commodities and services so as to safeguard the interests of consumers and promote technological progress.
Undertakings in the industries stipulated in the preceding paragraph shall operate their businesses pursuant to the law, act with honesty and integrity, exercise strict self-discipline, accept public supervision, and shall not make use of their controlling status or exclusive status to harm consumer interests.
Article 8 The administrative authorities and organisations which are empowered by the laws and regulations to carry out public administration functions shall not abuse their administrative powers to eliminate or restrict competition.
Article 9 The State Council establishes the Anti-monopoly Commission to take charge of organizing, coordinating, guiding anti-monopoly work and to perform the following functions:
1. studying and drafting relevant competition policies;
(II) organizing the investigation and assessment of overall market competition, and issuing assessment reports;
(III) Formulating and issuing anti-monopoly guidelines;
(IV) coordinating anti-monopoly administrative law enforcement; and
(V) other functions as prescribed by the State Council.
The State Council shall prescribe the composition and working rules of the anti-monopoly commission.
Article 10 The authorities designated by the State Council to undertake anti-monopoly law enforcement (hereinafter the "anti-monopoly law enforcement authorities under the State Council") are responsible for anti-monopoly law enforcement in accordance with this Law.
The anti-monopoly enforcement agency of the State Council may, based on work requirements, delegate the relevant anti-monopoly enforcement tasks to the corresponding agencies of the People's Governments of the provinces, autonomous regions and centrally-administered municipalities pursuant to the provisions of this Law.
Article 11 Industry associations shall strengthen industry self-governance, guide the undertakings in the respective industries to compete pursuant to the law, safeguard the order of market competition.
Article 12 For the purpose of the Law, operators refer to the natural persons, legal persons and other organizations engaging in the production or operation of commodities or the provision of services.
For the purpose of the Law, the relevant market refers to the commodity scope or territorial scope within which the business operators compete with each other during a specific commodity or service (hereinafter collectively referred to as the "commodities").
Chapter 2 Monopoly Agreements
Article 13 Competing undertakings are prohibited from concluding the following monopoly agreements:
1. fixing or changing prices of commodities;
(II) restricting the production or sales volume of the goods;
(III) dividing the sales market or the raw material procurement market;
(IV) restricting the purchase of new technology or new equipment or the development of new technology or new products;
(V) making boycott transactions; or
(VI) Other monopoly agreements as determined by the State Council anti-monopoly law enforcement authorities.
For the purposes of this Law, "monopoly agreements" refer to agreements, decisions or other concerted practices which eliminate or restrict competition.
Article 14 Business operators are prohibited from reaching the following monopolistic agreements with their trading parties:
1. fixing the price of commodities for resale to a third party;
(II) restricting the minimum price of commodities for resale to a third party; or
(III) Other monopoly agreements as determined by the State Council anti-monopoly law enforcement authorities.
Article 15 Article 13 or 14 hereof is not applicable if operators can prove that the agreements are concluded for:
1. for the purpose of improving technologies, researching and developing new products;
2. For the purpose of improving product quality, reducing cost, improving efficiency, unifying product specifications or standards, or carrying out professional labor division;
(III) for the purpose of increasing operational efficiency and enhancing the competitiveness of small and medium business operators; and
(IV) Realizing public interests such as energy conservation, environmental protection, and disaster relief and rescue;
(V) Alleviating serious drop in sales or obvious overproduction during an economic downturn;
(VI) Protecting legitimate interests in foreign trade or foreign economic cooperation; or
(VII) other circumstances stipulated by laws and the State Council.
Where the provisions of Article 13 and Article 14 do not apply under any of the circumstances stipulated in item (1) to item (5) of the preceding paragraph, the business operator shall also prove that the agreement it has entered into will not seriously restrict competition in the relevant market, and can allow consumers to share the benefits thereto.
Article 16 Industry associations shall not make arrangements for undertakings in the respective industries to engage in any monopolistic conduct prohibited by this Chapter.
Chapter III Abuse of Dominant Market Position
Article 17 An undertaking with dominant market position is prohibited from engaging in the following abuse of its dominant market position:
1. Selling commodities at unfairly high prices or buying commodities at unfairly low prices;
(II) Selling commodities at a price lower than cost without any justifiable reason;
(III) Refusing to trade with relevant trading counterparts without justified reasons;
(IV) requiring a trading party to trade exclusively with itself or with a designated business operator only without any justifiable cause;
(V) tying products or imposing unreasonable trading conditions at the time of trading without any justified reason;
(VI) Giving differential treatments, without any justifiable reason, to those transaction counterparts with the same conditions in terms of transaction price, etc.;
(VII) other acts of abusing dominant market position identified by the Anti-monopoly Authority under the State Council.
For the purposes of this Law, "dominant market position" refers to a market position where an undertaking can control the prices, quantities or other trading conditions of commodities in the relevant market, or can hinder or affect other undertakings' ability to enter the relevant market.
Article 18 A finding of the dominant market position of an undertaking shall be based on the following factors:
1. market share of the operator in a relevant market, and competition conditions of the relevant market;
2. the ability of the operator to control the sales market or the raw material procurement market;
(III) the financial and technical conditions of the business operator;
(IV) the dependency of other operators on the operator in terms of trading;
(V) the degree of difficulty for other undertakings to enter the relevant market; and
(VI) other factors related to the determination of dominant market position of the operator.
Article 19 An undertaking may be presumed to have a dominant market position if:
1. one business operator's market share in a relevant market reaches 1/2;
2. the combined market share of two undertakings in the relevant market reaches 2/3; or
3. the joint market share of three undertakings in the relevant market reaches 3/4.
In Items (2) and (3) of this Article, if the market share of some operator is less than 1/10, it shall not be presumed as having a dominant market position.
Where an undertaking which is deemed to hold dominant market position is able to prove that it does not hold dominant market position, it shall not be deemed to hold dominant market position.
Chapter 4 Concentration of Undertakings
Article 20 A concentration refers to the following circumstances:
1. merger of undertakings;
2. a business operator obtains the control over another business operator by way of acquiring its equities or assets; or
(III) A business operator acquires control over or is able to exert decisive influences on another business operator by signing a contract for this purpose.
Article 21 Where a concentration reaches the threshold of declaration stipulated by the State Council, a declaration must be lodged in advance with the anti-monopoly law enforcement authorities. A concentration shall not be implemented without such declaration.
Article 22 Where a concentration is under any of the following circumstances, it may not be declared to the anti-monopoly law enforcement authorities:
1. One of the participating undertakings owns more than 50% of the voting shares or assets of each of the other undertakings; or
(II) More than 50% of the voting shares or assets of each business operator involved in the concentration is owned by a business operator who is not involved in the concentration.
Article 23 An operator declaring concentration to the anti-monopoly law enforcement authorities under the State Council shall submit the following documents and materials:
1. A declaration;
(II) An explanation of the impact of the concentration on the relevant market competition;
(III) The concentration agreement;
(IV) The financial and accounting reports for the previous fiscal year of the participating undertakings which have been audited by the accounting firms; and
(V) other documents and materials as required by the anti-monopoly law enforcement authorities under the State Council.
The declaration shall state the name, address, scope of business of the undertakings involved in the concentration, the scheduled date of concentration and any other matters stipulated by the anti-monopoly enforcement agency of the State Council.
Article 24 Where the documents and materials submitted by an undertaking are incomplete, the undertaking shall submit the remaining documents and materials within the period stipulated by the anti-monopoly enforcement agency of the State Council. If the business operator fails to supplement documents and materials within the specified time limit, the declaration shall be deemed not to have been made.
Article 25 The anti-monopoly enforcement agency of the State Council shall carry out preliminary examination of the declared concentration of undertakings within 30 days from receipt of the documents and materials submitted by an undertaking which comply with the provisions of Article 23 of this Law, decide whether to carry out further examination, and notify the undertaking in writing. Before the Anti-monopoly Authority under the State Council makes a decision, the concentration may not be implemented.
Where the anti-monopoly enforcement agency of the State Council has decided not to carry out further examination or has not made a decision within the stipulated period, the undertaking may implement the concentration.
Article 26 Where the anti-monopoly enforcement agency of the State Council has decided to carry out further examination, the examination shall be completed within 90 days from the date of the decision and a decision on whether the concentration of undertakings is to be prohibited shall be made and the undertaking shall be notified in writing. Where a decision on prohibition of concentration is made, the reason shall be stated. During the review period, the concentration may not be implemented.
Under any of the following circumstances, the anti-monopoly law enforcement authorities under the State Council may extend the investigation period by no more than 60 days after informing the business operators in writing:
1. the business operators concerned agree to extend the review period;
(II) The documents or materials submitted by the undertaking are inaccurate, and need to be further verified; or
(III) A major change happens to the undertaking after the declaration.
Where the anti-monopoly enforcement agency of the State Council failed to make a decision within the stipulated period, the undertaking may implement the concentration.
Article 27 The following factors shall be considered in the review of concentration of undertakings:
1. the market shares of the business operators involved in the concentration and their control over the market;
2. The degree of market concentration of the relevant market;
(III) the impact of the concentration of business operators on market access and technological progress;
(IV) The impact of the concentration of business operators on consumers and other relevant business operators;
(V) The impact of the concentration of business operators on the development of national economy.
(VI) Other factors that the anti-monopoly law enforcement authorities under the State Council regard as necessary to be considered.
Article 28 Where a concentration has or may have an effect of eliminating or restricting competition, the anti-monopoly enforcement agency of the State Council shall make a decision to prohibit the concentration. However, where the business operator is able to prove that the positive impact of the concentration on competition is evidently greater than the negative impact or that the concentration complies with the public interest, the anti-monopoly enforcement agency of the State Council may decide to allow the concentration of business operators.
Article 29 Where a concentration is not prohibited, the anti-monopoly enforcement agency of the State Council may decide to impose restrictive conditions to mitigate the adverse impact of the concentration on competition.
Article 30 The anti-monopoly enforcement agency of the State Council shall promptly announce to the public a decision on prohibition of concentration of undertakings or a decision on imposition of restrictive conditions on concentration of undertakings.
Article 31 Where a foreign investor participates in the concentration of undertakings by merging and acquiring a domestic enterprise or by any other means and national security is involved, the national security review shall be carried out as well as the national security review in accordance with the relevant provisions of this Law.
Chapter 5 Abuse of Administrative Power to Eliminate or Restrict Competition
Article 32 The administrative authorities and organisations which are empowered by the laws and regulations to carry out public administration functions shall not abuse their administrative powers to restrict, directly or under any pretext, the sale, purchase or use by organisations and individuals of commodities provided by designated undertakings.
Article 33 Any administrative organ or organization empowered by a law or administrative regulation to administer public affairs may not abuse its administrative power to commit any of the following acts that impede the free flow of goods between regions:
1. imposing discriminative charging items, standards or prices on commodities from outside the locality;
(II) Set different technical requirements or inspection standards for products from other regions, or require that said products undergo repeated inspections, repeated certifications or other discriminatory technical procedures in order to restrict the entry of such products into the local market.
(III) Impose administrative licensing specifically on non-local goods in order to restrict the entry of such goods into the local market;
(IV) Set up barriers or take other measures to obstruct commodities from outside the locality from entering the local region or commodities from outside the local region; or
(V) other activities hindering the free flow of goods between regions.
Article 34 Any administrative organ or organization empowered by a law or administrative regulation to administer public affairs may not abuse its administrative power to reject or restrict non-local operators to participate in local bidding activities by setting discriminatory qualification requirements or assessment standards or releasing information in an unlawful manner.
Article 35 The administrative authorities and organisations which are empowered by the laws and regulations to carry out public administration functions shall not abuse their administrative powers to adopt unequal treatment between local undertakings to exclude or restrict non-local undertakings from investing or establishing branches in the locality.
Article 36 The administrative authorities and organisations which are empowered by the laws and regulations to carry out public administration functions shall not abuse their administrative powers to force business operators to engage in the monopoly acts stipulated in this Law.
Article 37 The administrative authorities shall not abuse their administrative powers to formulate provisions which exclude or restrict competition.
Chapter 6 Investigation into Suspected Monopolistic Practices
Article 38 The anti-monopoly enforcement agency shall investigate alleged monopolistic activities pursuant to the law.
Any organisation or individual shall have the right to report an alleged monopoly act to the anti-monopoly enforcement agency. The anti-monopoly enforcement agency shall keep confidentiality of the identity of the informant.
Where a report is made in writing and the relevant facts and evidence are provided, the anti-monopoly enforcement agency shall carry out the requisite investigation.
Article 39 When investigating suspected monopolistic practices, the anti-monopoly law enforcement authorities may take the following measures:
1. entering into the business premises or any other relevant places of the business operator under investigation for inspection;
2. Interrogating the business operators under investigation, interested parties, or any other related entities or individuals, and requiring them to explain the relevant situations;
(III) Consult or copy relevant documents, agreements, accounting books, business letters and telegrams, electronic data, and other documents and materials of the investigated undertakings, interested parties, and other relevant entities and individuals;
(IV) seal up or detain the relevant evidence; and
(V) Checking the operator's bank account.
Where the measures stipulated in the preceding paragraph are adopted, a written report shall be submitted to the key person-in-charge of the anti-monopoly enforcement agency for approval.
Article 40 When the anti-monopoly enforcement agency investigates an alleged monopoly act, there shall be not less than two enforcement personnel and they shall present their enforcement credentials.
When law enforcement personnel are carrying out investigations and interrogations, they shall keep written records which shall be signed by the investigated or interrogated parties.
Article 41 The anti-monopoly enforcement agency and its personnel shall be obligated to keep confidentiality of commercial secrets which have come to their knowledge in the enforcement process.
Article 42 The undertaking which is under investigation, the interested parties or any other relevant organisations or individuals shall cooperate with the anti-monopoly enforcement agency in their performance of duties pursuant to the law and shall not refuse or hinder the investigation of the anti-monopoly enforcement agency.
Article 43 The investigated operator and persons concerned are entitled to state their opinions. The anti-monopoly enforcement agency shall verify the facts, reason and evidence raised by the undertaking which is under investigation and the interested parties.
Article 44 Where the anti- monopoly enforcement agency has verified the investigation of an alleged monopoly act and concludes that the act constitutes a monopoly act, it shall make a handling decision pursuant to the law and make a public announcement.
Article 45 Where, for the suspected monopolistic conduct under investigation by the anti-monopoly law enforcement authorities, the business operators under investigation undertake to take specific measures to eliminate the consequences of such conduct within a period prescribed by the anti-monopoly law enforcement authorities, the anti-monopoly law enforcement authorities may decide to suspend the investigation. A decision on suspension of investigation shall state the specific contents of undertakings made by the business operator subject to investigation.
Where the anti-monopoly enforcement agency has decided to suspend investigation, it shall supervise performance of the undertaking by the undertaking. Where the undertaking has performed the undertaking, the anti-monopoly enforcement agency may decide to terminate the investigation.
The anti-monopoly authority shall resume the investigation under any of the following circumstances:
1. The operator fails to perform its promise;
(II) significant changes have taken place to the facts based on which the decision on suspending the investigation was made;
3. where the decision on suspension of investigation is made based on the incomplete or untrue information provided by the operator.
Chapter 7 Legal Liabilities
Article 46 Where an undertaking has violated the provisions of this Law in entering into and implementing a monopoly agreement, the anti-monopoly enforcement agency shall order the undertaking to stop the illegal act, confiscate illegal income, and impose a fine ranging from 1% to 10% of the sales of the preceding year; where the monopoly agreement has been entered into but has not been implemented, a fine of not more than RMB500,000 may be imposed.
Where an undertaking has voluntarily reported the relevant information of conclusion of a monopoly agreement to the anti-monopoly enforcement agency and provided important evidence, the anti-monopoly enforcement agency may consider a mitigation or waiver of punishment for the said undertaking.
Where an industry association has violated the provisions of this Law in organising the undertakings in the industry to enter into a monopoly agreement, the anti-monopoly enforcement agency may impose a fine of not more than RMB500,000; where the case is serious, the registration and administrative authorities for social organisations may revoke registration pursuant to the law.
Article 47 Where an undertaking has violated the provisions of this Law in abusing its dominant market position, the anti-monopoly enforcement agency shall order the undertaking to stop the illegal act and confiscate the illegal income; a fine ranging from 1% to 10% of the sales of the preceding year shall be imposed.
Article 48 Where an undertaking has violated the provisions of this Law in implementing concentration, the anti-monopoly enforcement agency of the State Council shall order the undertaking to stop implementing concentration, to dispose of the shares or assets within a stipulated period, to transfer the business within a stipulated period and to adopt other necessary measures to reinstate the pre-concentration status; a fine of not more than RMB500,000 may be imposed.
Article 49 When the anti-monopoly enforcement agency determines the specific amount of the fines stipulated in Article 46, Article 47 and Article 48, it shall consider the nature of the illegal act, the extent and the duration etc.
Article 50 A business operator which implements a monopoly act and causes others to suffer losses shall bear civil liability pursuant to the law.
Article 51 Where the administrative authorities and organisations which are empowered by the laws and regulations to carry out public administration functions abuse their administrative powers in elimination and restriction of competition, the higher-level authorities shall order them to make correction; the person (s) -in-charge who is/are directly accountable and other directly accountable personnel shall be punished pursuant to the law. The anti-monopoly enforcement agency may recommend actions to be taken pursuant to the law to the relevant higher-level authorities.
Where the laws and administrative regulations provide otherwise on handling abuse of administrative powers by organisations which are empowered by the laws and regulations to carry out public administration functions to eliminate or restrict competition, such provisions shall prevail.
Article 52 Persons who refuse to provide the relevant materials and information to the anti-monopoly enforcement agency for examination and investigation pursuant to the law or provide false materials and information or conceal, destroy or remove evidence or commit any other act to refuse or obstruct investigation shall be ordered by the anti-monopoly enforcement agency to make correction; a fine of not more than RMB20,000 may be imposed on individuals and a fine of not more than RMB200,000 may be imposed on organisations; where the case is serious, a fine ranging from RMB20,000 to RMB100,000 may be imposed on individuals and a fine ranging from RMB200,000 to RMB1 million may be imposed on organisations; where the case constitutes a criminal offence, criminal liability shall be pursued in accordance with the law.
Article 53 Persons who disagree with the decision of the anti-monopoly enforcement agency made pursuant to the provisions of Article 28 and Article 29 may apply for administrative review pursuant to the law; persons who disagree with the administrative review decision may file an administrative lawsuit pursuant to the law.
Persons who disagree with a decision of the anti-monopoly enforcement agency other than a decision stipulated in the preceding paragraph may apply for administrative review or file an administrative lawsuit pursuant to the law.
Article 54 Where any functionary of the anti-monopoly authority abuses his/her power, neglects his/her duties, seeks private benefits through wrongful means or discloses trade secrets he/she has access to during the process of law enforcement, and a crime is constituted, he/she shall be subject to the criminal liabilities; where a crime is not constituted, he/she shall be imposed upon a sanction.
第八章 附 则
Chapter 8 Supplementary Provisions
Article 55 This Law shall not apply to the exercise of intellectual property rights by business operators pursuant to the provisions of the relevant intellectual property rights laws and administrative regulations; however, this Law shall apply to business operators' abuse of intellectual property rights to exclude or restrict competition.
Article 56 This Law shall not apply to the joint or concerted actions of agricultural producers and rural economic organizations in the business activities such as production, processing, sales, transportation and storage of agricultural products.
Article 57 This Law shall go into effect as of August 1, 2008.
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