ТЕОРИЯ КОНКУРЕНТНОГО ПРАВА
The article discusses the issues of interpretation and applicability in competition law and in antitrust law enforcement practice of the civil law principle of good faith. The theoretical view of the concept of good faith as incompatible with the nature of public law is criticized.
The law enforcement practice in cases of violation of antitrust laws by participants of anticompetitive agreements was studied, which influenced the formation of key judicial positions related to assessing compliance with the principle of good faith by bidders. According to the results of the study, it was concluded that the civil law principle of good faith is at the same time a general principle of competition law as an integrated branch of law combining public and private principles of legal regulation.
It is noted that the use of this principle for legal assessment of the actions of participants in cartel agreements at tenders is not only an important tool to counteract cartelization of state and municipal procurements, but also a means of creating a business ethics of entrepreneurial relations in the public interest.
АНТИМОНОПОЛЬНЫЙ КОНТРОЛЬ
ГОСУДАРСТВЕННАЯ ПОЛИТИКА В СФЕРЕ БОРЬБЫ С КАРТЕЛЯМИ
Effective investigation of antitrust offenses, including crimes, is an urgent task that requires not only deep scientific justification, but also the development of a set of practical recommendations. Regularities of the mechanism for committing antitrust offenses (including crimes), the occurrence of information about the antitrust offense (crime) and its participants, the collection, research and use of evidence and special means and methods of judicial research and prevention of violations of antitrust laws based on these knowledges at present do not fit into the framework of a private forensic technique.
The article includes the definition of the concept of antitrust forensics. Justified the need of developing an independent branch of forensic science — antitrust forensics, which includes the theoretical part, antitrust forensic techniques, antitrust forensic tactics and antitrust forensic techniques.
The limits and severity of criminal liability for anticompetitive crimes in the member states of the Eurasian Economic Union (EAEU) have significant differences, despite the fact that the EAEU combines a common (single) economic space, the Model Law "On Competition" has been adopted, a single administrative responsibility for anti-competitive offenses committed in cross-border markets.
These differences are manifested, first of all, in the fact that in different EAEU member states the issues of criminalization of anticompetitive socially dangerous behavior have been resolved differently, and for similar anticompetitive crimes, punishments significantly differing in nature and gravity have been established.
The unsolved problem in the conditions of free movement of goods, finances and labor resources in the EAEU, according to the author, not only contradicts the principles of justice and equality of citizens before the law, which are enshrined in the criminal codes of all EAEU member states, but also hinders the successful economic development of the EAEU. In particular, significant differences in antitrust criminal policy can stimulate the “flow” of monopolistic criminal activity into the least rigid national jurisdictions within the EAEU.
To solve the corresponding problem, the author proposes to supplement the Treaty on the Eurasian Economic Union with provisions on the implementation of an agreed EAEU policy in order to harmonize administrative and criminal liability for violations of the antitrust laws of EAEU member states.
ЭКОНОМИЧЕСКАЯ ТЕОРИЯ КОНКУРЕНЦИИ
КОНТРОЛЬ ЗА ОСУЩЕСТВЛЕНИЕМ ИНОСТРАННЫХ ИНВЕСТИЦИЙ
OPENING SPEECH
МЕТОДОЛОГИЯ ИССЛЕДОВАНИЯ РЫНКОВ
In order of antimonopoly legislation applying in the area of analysis of the condition of competition in the market antimonopoly body currently uses the theory of branch markets. According to the level of standardization of a goods (services), markets are divided into markets for a homogenous goods (services) and markets for a differentiated goods (services). Goods markets which includes independent companies of suppliers (manufacturers) and consumers recognizes as «classic» goods markets if fair competition terms among the suppliers has been violated. However, the branch markets for number of commodity groups doesn’t considered as typical regardly to development of wholesale markets and resale system, trading networks and aspiration of trading objects for expansion of goods nomenclature and range.
The concept of competition as the interaction of producers of srictly homogenous goods, reflected in the Procedure for analysis of the condition of competition in the goods market, approved by the FAS Russia dated april 28, 2010 № 220, makes it difficult to determine the markets boundaries and therefore requires revision.
The author does not notes unjustified restriction absence and eligibility criteria while using probabilistic (prognostic) models as toolkit for evidence receiving when considering a case on violating of the antimonopoly legislation. Using above-stated approaches is contradiction to the basic principles of the administrative process. In particular, using the “hypothetical monopolist” test (SSNIP) to determine the market’s goods boundaries seems to be incorrect.
The article considers abovestated issues solutions ways that improves authenticity and unprejudicity of decisions in the area of antimonopoly legislation application in order to prevent and restrict the vioations of the antimonopoly legislation.
ПРОБЛЕМЫ РАЗВИТИЯ КОНКУРЕНЦИИ НА РЕГИОНАЛЬНЫХ РЫНКАХ
А country's сompetitiveness cannot be achieved if the competitiveness of its constituent regions is low. Thus, the regions actually determine the socio-economic processes carried out in the state, and the state, in turn, adjusts the factors that determine the development of the region. The article identifies the factors that influence the development of regional competitiveness and the mechanisms for regulating these factors.
Scientific novelty: the content of the concept of competitiveness of the region is revealed, factors preventing the full and homogeneous development of competitive potential of the regions are identified, a set of measures aimed at improving the regional, in particular, and national competitiveness of the Russian economy is defined.
The article discusses the problems of limiting and developing competition in the Arctic zone of the Russian Federation related to the use of a specific model for regulating entrepreneurial activity. According to the author, this model, on the one hand, requires the provision of benefits and preferences for business entities planning and carrying out investment activities in the Arctic zone, and on the other hand, the introduction of various administrative barriers that limit the choice of the order and method of doing business. The indicated barriers and restrictions in the ways of conducting business can lead to restriction of competition between participants in the same product markets (competitors). In addition, restrictions on the methods of entrepreneurial activity cannot be considered justified from the point of view of constitutional norms governing the freedom of economic activity and the grounds for introducing its restrictions.
In order to prevent the negative consequences of the implementation of the proposed model for the regulation of entrepreneurial activity by the Ministry for the Development of Russia, it is proposed to switch from an organizational and structural approach to a functional one based on the increasing ability to process large amounts of information and effective interaction with tax and other bodies.
ПРОБЛЕМЫ РАЗВИТИЯ КОНКУРЕНЦИИ НА ОТРАСЛЕВЫХ РЫНКАХ
ОБЗОРЫ
The review contains an analysis of the legal positions of the arbitration courts in cases of violation of the antimonopoly legislation regarding the consideration of the following issues: an order of the antimonopoly body on transferring to the budget the income received as a result of violation of the antimonopoly law; non-payment of services received under the contract as an abuse of a dominant position; trust agreement as a condition for the admissibility of an anti-competitive agreement; claims of the antimonopoly body on forcing an economic entity to comply with the instructions of this body.
Purpose: the formation of uniform approaches in law enforcement practice in cases of violation of antitrust laws.
Ratio of regional antimonopoly`s decisions appealed under collegial body of the Federal antimonopoly service related to the establishment of the facts of the conclusion of prohibited competition-restricting agreements exceeds the part of the other decisions.
In most cases, this is related to the issues of proving the arrangement and implementation of competition-restricting agreement, because not always certain circumstances can clearly indicate the fact of conclusion of such agreement.
The most interesting are the cases of «bid rigging» cartels, which are prohibited by paragraph 2 of the part 1 of article 11 of the Federal law "On protection of competition" (hereinafter — the Law on protection of competition). Establishing that competitionrestricting agreements in each case, all collected in the case on violation of Antimonopoly legislation of the evidence to be assessed, without which it is impossible to make an informed decision on the case, and defendants in cases usually do not agree with the competition authority of certain evidence as proof of anti-competitive agreements.