On Misuse Of Market Dominant Position And Its Legal Regulation

Market competition is intensified as the development of the market economy in China and the improvement in market economic system. Various activities of market dominant position misuse emerge in our economic life, which has become one of the impediments to fair and ordered market competition. The Anti-monopoly Law of China was passed on August 30, 2007 to prevent companies taking or maintaining the market dominant position, regulate the activities of market dominant position misuse, keep a good market structure, guarantee fair competition, and to protect competitors and consumers'legal rights as well as to ensure a sound development of the market economy. According to the request of common modern anti-monopoly laws the new passed law makes forbidding misusing market dominant position as one of its core rules. However, the anti-monopoly rules in China concerning misuse of market dominant position still need to be improved. Therefore, the subject on how to make improvement in China's anti-monopoly laws which concerns misuse of market dominant position by learning from western countries and basing on China's present situation is urgent to study.The paper analyzes several basic problems of market dominant position, such as its concept, cognizance and the definition and partition of the market, as well as the concept, constitutive requirements and the harm of the misuse of it. It makes further discussion on the legislation styles on forbidding misuse of market dominant position and the concrete types in other countries. It also tries to fine the shortcomings in China's current legislation by analyzing its anti-monopoly laws concerning forbidding misuse of market dominant position. With the hope to make some contribution to improve China's anti-monopoly laws, it raises some suggestions on improving the anti-monopoly laws concerning misuse of market dominant position. The paper consists four parts:Part-1 Common problems of market dominant position are reviewed to lay a foundation for further discussion on misuse of market dominant position and laws. 4 aspects are discussed in this part: First, definitions of market dominant position in different countries'anti-monopoly laws are introduced to summarize a common definition--a position achieved in competition by enterprises or unions of enterprises, which enable the enterprises or the unions of enterprises to control the price, quality, distribution or other exchange conditions of a certain product or to prevent other competitors enter a certain market. Second, determination problems of market dominant position are discussed, which concerns market result standard and market behavior standard. The premise of market dominant position determination--theories on the definition and partition of a certain market are introduced. Finally, determination standards based on market share and other elements for market dominant position are raised. Third, five forms of market dominant position, including monopoly, quasi-monopoly, prominent oligopoly of market position, and law presumptive monopoly or oligopoly are discussed. Fourth, the determination of market dominant position in China's anti-monopoly law are analyzed and evaluated. Germany's Anti-constraint Law can be used as reference on the regulation of market share. Restrictive regulation on gross sales in inferring market dominant position by market share should be increased or the anti-monopoly law enforcement agency should be granted the rights to make regulations according to the actual situation.Part-2 Activities of misuse of market dominant position are analyzed. Four aspects are discussed in this part: First, regulations on forbidding misuse of market dominant position in other countries are discussed to summarize the definition of misuse market dominant position--enterprises obtain strong market power by maintaining market dominant position. But they misuse it in practice market power which interrupts the market order and other operators and consumers'interest by substantial restriction or excluding competition in some exchange fields. Second, the constructive requirements of misuse market dominant position are analyzed. Subject condition, subjective aspect, object condition, objective aspect and aim condition are discussed. Third, forms of misuse of market dominant position are analyzed. Legislation styles in determination of misuse of market dominant position, both in generalization pattern and enumeration pattern, are introduced first. The common modus for all countries are presented to point out that China should take the enumeration and generalization pattern in its anti-monopoly legislation style--enumerating some typical misuse of market dominant position activities while making some save clause to draw those which are not included. Then, the connotation of different kinds of activities of market dominant position misuse, including unfair price behavior, predatory pricing, refusal transaction behavior, differential treatment, mandatory business, and tying transaction, and the harm to competitors, consumers and the market competitive order are analyzed in detail. Finally, with the reference of China's anti-monopoly law, tying transaction should be put into the misuse behaviors regulated by Anti-Monopoly Law.Part-3 law issues concerning misuse of market dominant position are analyzed. 3 aspects are discussed: First, different regulation patterns to misuse market dominant position are introduced, including structuralist control mode and behavioristic control mode. The combine of the two with slightly emphasize on the later are considered an ideal pattern. Second, principles on affirm irregularity of misuse of market dominant position, including per se rule and rational principle. This paper also suggests that a certain principle should not be applied generally, but referencing the actual situation. Third, legal liability of misuse of market dominant position is discussed. From civil liability, administrative responsibility and criminal responsibility perspective, the regulation on misuse of market dominant position in other countries'anti-monopoly laws are analyzed to find shortcomings in China's anti-monopoly law as well as to raise suggestion on how to make improvement--to establish a liability system which combines the civil liability, administrative responsibility and criminal responsibility in misuse of market dominant position.Part-4 is the conclusion part. In this part, the author's opinion and suggestion on the determination of misuse market dominant position and its law. Hopefully, this may some good to perfect China's anti-monopoly law.