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79 U. Det. Mercy L. Rev. 399 (2001-2002)
Shaping an Anti-Monopoly Law Sanction Regime against Cartels or Bid Collusion: A Perspective on Japan's Choice

handle is hein.journals/udetmr79 and id is 411 raw text is: Shaping an Anti-Monopoly Law Sanction Regime Against Cartels or Bid Collusion: A Perspective on Japan's Choice BY SHIGEKI KUSUNOKI I. INTRODUCTION It has become a common understanding that competition' is a main principle that governs the market economy.2 Law that has a role in maintaining or facilitating competition is called antitrust law in the United States (U.S.), competition law in the European Community (EC), and anti-monopoly law in Japan. The Japanese Anti-Monopoly Ace was established in 1947 in the course of democratic reconstruction after the end of World War II, Research Fellow of Kyoto Comparative Law Center 1. The concept of competition is one of the most troublesome concepts when comparing antitrust laws internationally. Competition, which each country's antitrust law tries to maintain and facilitate, depends on the country's historical and academic background. For example, a condition decreasing price toward marginal price is a useful tool to understand the concept of competition in U.S. Antitrust Law. See HERBERT HOVENKAMfiP, FEDERAL ANTITRUST POLICY; THE LAW OF COMPETITION AND ITS PRACTICE 558 (2d ed. 1999). However, there is not such an understanding in Japan's Anti-Monopoly Act. Unlike the U.S. Antitrust Law and Japan's Anti- Monopoly Act, which has its origin in U.S. law, EC Competition Law has an original legislative history and development (for example, the influence by Ordo Liberalism) and this background affects EC law in shaping the concept of competition as norm. Regarding the historical background of EC Competition Law, see D.J. GERBER, LAW AND COMPETITION IN TWENTIETH CENTURY EUROPE: PROTECTING PROMETHEUS (1998); I. Maher, Re-imagining the Stoy of European Competition Law, 20-1 OXFORD J. LEGAL STUD. 155 (2000). In this article, I ignore the possible differences mentioned above and recognize that competition is a common principle that governs the market economy at an abstract level. 2. Doubt against the study that there is a culture among Japanese firms preferring cooperation, rather than competition is seen in Harry First, Antitrust Enforcement in Japan, 64 ANTITRUST L.J. 137 (1995). 3. Act Concerning Prohibition of Private Monopoly and Maintenance of Fair Trade, Pub. L. No. 54 of 1947. The translation into English is located at the web site of the Fair Trade Commission, http://v.jftc.go.jp. Examples of books written in English on the Anti-Monopoly Act are: HIROSHI IYORI & A. UEsUGI, THE ANTI- MONOPOLY LAWS AND POLICIES IN JAPAN (1994); MITSUO MATSUSHITA & J. DAVIs, INIRODUCTION TO JAPANESE ANTIMONOPOLY LAW (1990); M. Matsushita, The Anti- Monopoly Law of Japan, in GLOBAL COMPETITION POLICY (E.M. Graham & J.D. Richardson ed., 1997).