중국 반독점법에서 행정독점의 인정에 관한 연구

Administrative monopoly is an economic phenomenon with distinct Chinese characteristics that emerged during the transformation and development period of China's socialist market economy. In 1993, the "People's Republic of China Anti-Unfair Competition Law" (hereinafter referred to as the "Anti-Unfair Competition Law") was enacted, raising issues of market competition restriction by administrative power to a legal level for the first time. By introducing relevant provisions and using the term "abuse of administrative power," the concept of "administrative monopoly" was officially recognized. In 2008, China promulgated the "People's Republic of China Anti-Monopoly Law" (hereinafter referred to as the "Anti-Monopoly Law"), which echoed expressions from the Anti-Unfair Competition Law, pointing out that organizations with delegated public administrative functions should not abuse administrative power to exclude or restrict competition. The latest revised version of the Anti-Monopoly Law in 2022 maintains provisions related to administrative monopoly while adding some content. This paper aims to address the issue of unclear definition of this concept in academia by analyzing and summarizing cases published by the State Administration for Market Regulation of China. Additionally, it empirically analyzes the conditions, subjects, and outcomes of administrative monopoly. Furthermore, it provides additional analysis of the characteristics and issues of regulating administrative monopoly under the 2022 revision of China's Anti-Monopoly Law. The characteristics of the revised Anti-Monopoly Law include unified enforcement authorities and expanded regulatory scope, while the issues include insufficient penalties for illegal administrative entities and inadequate regulation of illegal abstract administrative actions. These are aspects that China should pay attention to and improve in future legal revisions. When considering laws such as the Anti-Monopoly Law that regulate administrative monopoly in China, it is necessary for Korean companies operating in China to utilize them to the fullest extent. Korean companies operating in China can use the Anti-Monopoly Law as a basis to prevent or remove constraints on unreasonable business activities by arguing that various competition-restricting measures by local governments constitute abuses of administrative power. Additionally, governmental intervention in economic markets through preferential treatment for specific industries or companies, inappropriate cooperation between sectors, and market price interventions can be monitored, focusing on hidden administrative monopoly practices (illegal administrative guidance). This role is principally thought to be carried out by the Fair Trade Commission. In some cases, the Audit Office or the Human Rights Commission could also play a role. Regulating government administrative monopoly practices can help maximize the freedom of the capital market and facilitate the expansion of cooperation and trade between private enterprises in both Korea and China.