| Transgenic technology is one of the fastest growing,most innovative and most promising high technologies in this century.Agricultural transgenic technology is the specific application of transgenic technology in the agricultural industry,which will be helpful for solving the food shortage and environmental problems and improving farmers’ income.Since agricultural transgenic technology has such great commercial value,it is highly promoted by United States and other developed countries with a worldwide rapid growth.In this circumstance,with the increasingly fierce competition of agricultural transgenic technology the monopoly of agricultural transgenic technology could come into being,which will not only destroy the fair competition in relevant markets,inhibit the innovation and development of agricultural transgenic technology and agricultural industry,but also bring damages to the interests of consumers.Worse still,agricultural transgenic technology monopolists may control the entire agricultural industry chain so as to affect the safety of agricultural industry and national security.In order to avoid being influenced by the monopoly of agricultural transgenic technology,ensure the development of agricultural transgenic technology and enhance international competitiveness of enterprises,many countries will face the common tasks for regulating the monopoly of agricultural transgenic technology effectively.China has always attached great importance to the development of agricultural transgenic technology,and continued to implement the transgenic policies of being bold in research,adhering to independent innovation,being careful in promotion and ensure safety,and being strict in management and legal supervision.In a number of government documents,the state pointed out the importance of biotechnology and transgenic technology,and encouraged active technical research.Since 2007,there has being eight times in the.document No.1 of Central Government to point out the agricultural transgenic issues.In 2013,General Secretary Xi Jinping stressed at the central rural work conference that we should boldly innovate and occupy the commanding height of transgenic technology to prevent foreign companies from occupying the market of agricultural transgenic products.In 2017,China officially listed the industrialization and promotion of transgenic crops into the "13th National Five-Year Plan on Science,Technology and Innovation".In 2020,the document No.1 of Central Government demands the strengthening of the research and supervision of agricultural transgenic technology as well as the promotion on the basis of safety.In this context,it is necessary to strengthen the legal regulation system of China’s agricultural transgenic technology monopoly so as to improve the competitiveness of China’s agricultural transgenic technology industry as well as the research and development capability of agricultural transgenic technology for holding its commanding point in time etc.At the same time,since the specific legal system for the monopoly of agricultural transgenic technology in the world are still in the early stage,China will provide its own scheme in this field if it can take the lead in establishing the legal regulation system of the monopoly of agricultural transgenic technology.The research on the legal regulation of agricultural transgenic technology monopoly involves in many fields such as agriculture,transgenic technology,intellectual property and anti-monopoly law.Therefore,the theoretical basis of regulating the monopoly of agricultural transgenic technology involves in the following aspects,including:(1)the general and basic theories of the legal regulation of agricultural transgenic technology monopoly,such as the modern competition theory,the industrial policy theory,the relationship theory between competition and industry etc.;(2)the theories related to the transmission of monopoly power in the field of agricultural transgenic technology,such as the externality theory and the leverage theory in the anti-monopoly law;(3)the theories related to the evaluation of the competitive effect of agricultural transgenic technology,such as the consumer welfare theory,the innovation theory and the industrial safety theory.Based on the particularity of agriculture and transgenic technology in the monopoly of agricultural transgenic technology,this paper divides the research on the monopoly of agricultural transgenic technology into the following two aspects:(1)The special monopoly of agricultural transgenic technology,which refers to the monopoly behavior with distinct characteristics and special hazards in the field of agricultural transgenic technology due to the particularity of agricultural transgenic technology,mainly include gene character stacking monopoly,industrial chain monopoly and business model monopoly.These kind of monopolies need to to be regulated from the angle of macro-development of industry through the formulation of targeted and flexible anti-monopoly policy measures;(2)The general monopoly in the field of agricultural transgenic technology,that is,the performance of various specific monopolies regulated by anti-monopoly law in the field of agricultural transgenic technology,the regulation of such monopolies depends on the specific application of anti-monopoly law and the solution of new and difficult problems in the application of such laws.On the regulation of special monopoly behavior in the field of agricultural transgenic technology,this paper studies from point to line to surface according to the development characteristics of special monopoly and its role in monopoly formation.The first is the ’point’ of genetic trait stacking,which is based on the superposition between different genetic traits.Genetic trait technology is related to the "source" of agricultural transgenic technology application,which controls the development and use of genetic traits,and to a certain extent controls agricultural transgenic technology.Therefore,genetic trait stacking monopoly can be regarded as "basic monopoly" or"origin of monopoly" in the field of agricultural transgenic technology,which directly affects the competition of agricultural transgenic technology market.The regulation of genetic trait stacking monopoly mainly starts with the establishment of genetic source monopoly exclusion system and reasonable benefit distribution system.In the process of reviewing genetic trait stacking monopoly,the improper stacking behavior should be prohibited by inspecting the stacking of traits with special purpose,such as the intention to raise the price or limit the choice of consumers;on the other hand,the licensing behavior of genetic trait stacking needs to be inspected in order to avoid the emergence of monopoly behaviors.The main purposes of establishing a reasonable benefit distribution system is to reconcile the contradiction between the owner and the user of genetic traits,to protect the interests of both sides reasonably,and to reduce the probability of the occurrence of the monopoly of the genetic traits.The second is the industrial chain monopoly based on the relationship between the middle and lower reaches of the agricultural market.Industrial chain monopoly is based on the characteristics of the monopoly power of agricultural transgenic technology in the upstream and downstream markets of agricultural transgenic technology industry chain.The monopoly power starts from the agricultural transgenic technology market located at the source of the industrial chain,transmits to the transgenic seed market located in the middle and lower reaches,then continues to extend to agricultural product market,and finally forms a chain monopoly.The transmission of monopoly power in different market links of industrial chain not only leads to monopolization in each market,but also expands the scope and extent of the monopoly of agricultural transgenic technology.The regulation of industrial chain monopoly mainly tries to establish the risk prevention and control mechanism of industrial chain monopoly.On the premise of clarifying the nature of monopoly power transmission in industrial chain monopoly and dealing with the relationship between industrial chain monopoly and vertical integration of industry,the monopoly of industrial chain is actively controlled in advance so as to prevent the formation of industrial chain monopoly or hinder its monopoly power transmission through establishing the risk assessment and warning system of industrial chain monopoly.Finally,it is the monopoly of business model based on the expansion of agricultural transgenic technology.The impact of agricultural transgenic technology is produced not only in the technical field itself,but also in the expansion to other areas,which may simultaneously affect a variety of factors of agricultural production,so that the agricultural business model might change,resulting in the dependence on the production factors of agricultural transgenic technology(for example,transgenic seeds must use supporting herbicides and other factors pesticides,etc.).The monopoly of business model shows that operators usually rely on agricultural transgenic technology to shape the dependence relationship between different agricultural production factors from soil to the structure of crop varieties,then to seeds and pesticides,and construct a set of special production and management mode based on agricultural transgenic technology,which would make growers falling into the closed circulation system of agricultural transgenic technology gradually and can only allow the monopolists of agricultural transgenic technology to plunder and exploit.The monopoly of business model has completely penetrated the agricultural transgenic technology into all the agricultural production and business activities.Therefore,the main purpose of regulation of business model monopoly is mainly to establish the regulatory measures for the research and use of agricultural transgenic technology.By monitoring the process of agricultural transgenic technology use,we try to control and reduce the user dependence caused by its expansibility,so as to break the closed cycle of agricultural transgenic technology business mode.The general monopoly in the field of agricultural transgenic technology involves in three links of technology operation:(1)how to obtain technology?(2)Is technology licensed?(3)How to license technology?Correspondingly,the general monopoly in the field of agricultural transgenic technology is refined into three categories:the first is the technology gathering behavior for the purpose of obtaining a large number of agricultural transgenic technology;the second is the refusal to deal of transgenic technology for the purpose of blocking the market;the third is the technology licensing restriction behavior for the purpose of restricting free competition of technology licenses.The technology agglomeration behavior in the field of transgenic technology,originating from the technology acquisition link,is to obtain and occupy the techniques through agglomeration so as to enhance the technical strength of technique holders,which is regarded as the premise and foundation of the monopoly of agricultural transgenic technology.The regulation of technology agglomeration behavior is mainly to establish the declaration and examination system of agricultural transgenic technology agglomeration,to establish certain declaration and examination standards,to conduct anti-competitive examination of agricultural transgenic technology agglomeration behavior that meets the standard,to evaluate and judge whether the specific technology agglomeration behavior endangers competition from the perspectives of market competition,price,entry barrier and technological innovation.The refusal to deal in agricultural transgenic technology through the control of license technology,can directly block the market,control technology,exclude new competitors from entering the market,and even seriously endanger competition.The regulation of refusal to deal usually needs to define the dominant position of the market.However,due to the strong product differentiation in the field of agricultural transgenic technology,the relevant market division.scope is relatively small,and the agricultural transgenic technology giants have their own technical advantages,so it is possible to affect the correct determination of the dominant position of the market according to the traditional analysis method.This paper tries to provide countermeasures to the difficult problems in the application of this law,and advocates that on the basis of considering the market share,the market barriers,prices,exclusive behavior and other factors should be considered in the process of the comprehensive determination of the dominant market position of the technology owners,and then through the analysis of the impact of refusal to deal on market competition and whether there is a "reasonable reason" to identify the monopoly behavior.As for the technology licensing restriction,it is the most common monopoly behavior in the monopoly of agricultural transgenic technology,which mainly occurs in the process of technology licensing and the use of licensed technology.Technology licensing restriction can be manifested,on the one hand,by restricting the licensees’rights to use the technology for limiting licensees’ technological innovation and market competitiveness,and,on the other hand,by restricting the licensees’ trade with third parties in technology or technology products for destroying market competition.The regulation of the restriction behavior of agricultural transgenic technology license is usually defined by the product market,the technology market and the innovation market,which still face many new challenges in the field of agricultural transgenic technology.The research on the legal regulation of special monopoly and general monopoly in the field of agricultural transgenic technology provides the basis for improving the legal regulation of agricultural transgenic technology monopoly in China.Through combing the existing legislation of agricultural transgenic technology in China,we find that there are a series of problems in the legal regulation of agricultural transgenic technology monopoly.From the aspect of legislation,the macro supervision system of agricultural transgenic technology monopoly in China is weak,and the prevention and control measures in advance are insufficient,which makes it difficult to effectively regulate the special monopoly in the field of agricultural transgenic technology.At the same time,the existing anti-monopoly law and relevant regulations have their own shortcomings and fail to meet the requirements of regulating the general monopoly in the field of agricultural transgenic technology.In the aspect of law application,there are also some problems,such as the legal regulation method of market concentration can not be directly applied to technology agglomeration,the traditional market division and market dominance identification method can not be well applied to the field of agricultural transgenic technology,and the traditional tying arrangement identification method is not suitable for applying to the bundling of agricultural transgenic technology.In addition,there is a lack of supporting system related to the monopoly regulation of agricultural transgenic technology,such as the lack of supervision and management regulations of agricultural transgenic technology,evaluation regulations of the use of agricultural transgenic technology,etc.In view of the above problems,this paper intends to regulate the monopoly of China’s agricultural transgenic technology in the form of formulating the anti-monopoly guide for China’s agricultural transgenic technology by the method of combining macro and micro,beforehand and afterwards,and main and supporting systems,and tries to design the overall framework and specific content of China’s anti-monopoly guide on agricultural transgenic technology,mainly including:(1)the general principles,which are related to the purpose,scope and principles of anti-monopoly guidelines for agricultural transgenic technology;(2)the regulation construction rules for special monopoly,which mainly include the establishment of genetic source monopoly exclusion system,industrial chain monopoly prevention and control mechanism,agricultural transgenic technology use behavior censorship;(3)the applicable rules of law for general monopoly,which mainly include the analysis path of general monopoly of agricultural transgenic technology,and the determination rules of agglomeration behavior,refusal to deal and license restriction behavior;(4)the specific rules of the supporting system,which mainly include the monitoring mechanism,the evaluation system and the reasonable benefit distribution system in the use process of agricultural transgenic technology. |
