Study On The Legal Regulation Of Resale Price Maintenance

Resale price maintenance is one of the most controversial issues in antitrust economics and antitrust law.After the Leegin case,the United States has undergone significant changes in the maintenance of the resale price,and the legislation and law practices of other countries have also been affected to a certain extent.There are also certain disputes among anti-monopoly law enforcement and the judiciary departments of China on the application of laws for resale price maintenance under this influence.On the other hand,there are a lot of resale price maintenance behaviors in China's economic reality,and these resale price maintenance behaviors are often combined with non-price restrictions.How to regulate the resale price maintenance according to the actual situation in our country is a problem that needs further study.In this paper,the research contents of this paper mainly include the following parts:The first part,i.e.,introduction,which introduces the background of the topic,the significance of the research,the research status at home and abroad,the contents and methods of this study,the innovation and deficiency of this research,and provide the basis for the following research.The second part,i.e.,the general interpretation of resale price maintenance,resale price maintenance is the price condition by which,as agreed by the operator and its counterparty,such counterparty shall maintain in the transaction for which the goods provided by the operator to such counterparty have been resold.In business practice,resale prices maintenance may be expressed in a variety of forms,and may be in a legitimate form of camouflage in order to achieve the purpose of circumventing the law.Defining the resale price Maintain and summarizing its characteristics,distinguishing it from the adjacent concept,and identifying the resale price from multiple perspectives are the basis for grasping its substance and taking appropriate regulatory measures.Resale price maintenance mainly including the fixing of price,limiting the lowest price or the maximum price,the provisions of the interval price and other forms,may be the producer-led,retailer-led,co-dominant,bilateral consultations or single Side policy type.From the economic attributes,the resale price is maintained in a loose vertical integration.From the legal nature of the terms,bilateral negotiated resale price to maintain the nature of the contract,and unilateral policy resale price to maintain a negative contract.The third part,i.e.,the legal theory and choice of resale price maintenance,the legal supervision of resale price maintenance,as a hot issue of antitrust economics and antitrust law,is disputed for illegal or legitimate.Persons who disputes it are arguing mainly from the brand competition and facilitation of manufacturers or dealers conspiracy,by which it is regarded that resale price maintenance limiting competition within the brand and promoting the manufacturer or vendor cartel negative effects;Persons who supports it are arguing mainly from the prevention of free ride,the avoidance of double price-increase,the proving of product quality and the solving of problem of uncertainty,by which it is regarded that the resale price maintenance has a positive effect of promoting competition.But the empirical experience has proved that the violation of the law in most cases is not established.Although the latter can be established under certain conditions,but it is dominated by the efficiency of monopoly producers and does not have universal applicability.Under the premise of limited recognition of its positive effects,the legal regulation of the resale price maintenance should not stand in the position of the manufacturer,and should focus on the protection of the retailer and should be based on the welfare of the consumers.The fourth part analyzes the relevant laws and regulations of the United States,the European Union,Germany,Japan and Taiwan,and summarizes its reference.The regulation of resale price maintenance in the United States was established by case law.The United States Court,initially based on the "Sherman Act" of "conspiracy and restrictions on trade",determined the resale price maintenance as a behavior of manufactures that limit the trading freedom of retailers and further restricted the same based on its illegality.But based on the interests of small and medium-sized retailers,the US state legislations have emerged to protect the resale price maintenance gradually.Overall,the United States courts attach more importance to the application of economic analysis theory and are more tolerant to the producer-led unilateral resale price maintenance.In the case of leegin,the US Supreme Court turned to protecting the efficiency of producers.The EU's regulation of resale price maintenance is based on economic freedom in economic integration,emphasizing the protection of freedom of competition in the value orientation,and only by the influence of the leegin case,which begins to allow producers to defend their efficiency.At the beginning of legal regulation of resale price maintenance,Germany considered the balance of powers between manufacturers and retailers,and,based on this view,determined that the free competitive interests of the retailers should be protected.Japan's legislative content transplanted the United States law,but in the process of law enforcement of the court and law enforcement agencies,it is mainly regarded that the resale price maintenance is unilateral coercive behavior,which impedes free trade and free competition.The anti-trust practices in Taiwan also attach importance to the harm of resale price maintenance on the free competition by any independent dealers.The regulatory experiences of such countries and regions as mentioned above indicate that such regulation shall be based on the value orientation and shall focus on the freedom of the dealer's protection.The fifth part is the review and reflection of the legal system of the current resale price maintenance in China.In theory,there are different interpretations of the provisions on the maintenance of resale price in China's Anti-trust Law,and there are differences in the principle of legal regulation of resale price maintenance,which leads to the difference between law enforcement and judicial maintenance of resale price maintenance.These differences not only produced confusion in practice,but also produced unnecessary controversy.The main reason is that China does not explicitly express its value orientation on the legal regulation of resale price maintenance,or makes unequivocal regulation of unilateral policy resale price maintenance,and there fail to be provide expressly on the areas which should be exempted.The sixth part,i.e.,the perfection of the legal system of resale price maintenance in China,multi-values have been merged into China's anti-monopoly law,provided,however,usually the regulation of any specific behavior is based on certain preferential values and taking into account some sub-optimal values in certain special situations.Generally speaking,the resale price maintenances in China are dominated by the producers with comparative advantages which are combined with other other vertical non-price restriction means and reflect the unilateral will of such producers;therefore it may be classified as the typical & unilateral resale price maintenance.So the regulation thereof shall be based on the freedom of competition of the dealer or the retailer,while the consumer's welfares shall be regarded as the boundary of freedom of competition.For the purpose of defining the choice of regulatory approaches,it's better to classify such unilateral resale price maintenance as the abuse of comparative advantage status behavior and to permit efficiency defense for the bilateral resale price maintenance.For industries such as luxury goods and paper publications that are very beneficial to a particular social member or have an important influence on the overall cultural interests of society,the exemption to resale price maintenance shall be permitted.