Study On Constitutive Requirements Of Industry Association’s Restrict Competition Behavior

As social intermediate organizations, industry association play an important role in the communication relationship between the government and enterprises, servicing enterprises and regulating the market order. It manages the industry actively, promotes orderly competition and maintains a good market environment, but implemented a lot of limiting competition behavior, too. Shanghai gold association event and instant noodles association event are two typical cases. In 2013, the State Administration for Industry and Commerce antitrust case publishing platform released 12 competition law enforcements, which is a total of 12 cases of monopoly, and among which nine are monopoly agreement organized by the industry association.The anti-monopoly law only has general provisions for the industry association limiting competition behavior. Article 9 in the Provisions on prohibiting monopoly agreement by administrative department for industry and commerce refines the forms of monopoly agreements behavior of industry association.But they did not make it clear whether "eliminate or restrict competition" is the purpose or effect or is only object and content. Therefore, the law lacks a complete clear constitutive requirements for industry association’s restrict competition behavior. Industry association’s restrict competition behavior differs from transactor’restrict competition behavior. Firstly, Subject area is different. Secondly, when the industry association perform legal function, it has a good purpose, a positive effect and can be applicable for exemption system. What’s more, form of industry association’restrict competition is varied, the legislation does not include forms of limiting competition behavior such as internal discrimination and refusing enterprises to join in. However, the Antitrust laws and regulations only provides a summary standard, did not fully consider characteristics of industry association’s restrict competition behavior. Thus the cognizance of industry association’s restrict competition behavior lack of pertinence.These problems affect the acknowledgment and investigation of the industry association’s restrict competition behavior and conformation of the industry association’s functional behavior. Thus economic law can not effectively regulate illegal behavior or guide industry association develop healthily, and as a result, as the third sector of society, industry association is easy to paly a negative role but difficult to play a positive role on economic growth. Based on Chinese laws and problems of China, the author does targeted carding and research on the subject factor, the subjective factor, the behavior factor and the effect factor of industry association’s limiting competition behavior one by one, including their necessity, specific connotation, practical significance and concrete analysis method. On the hand, the author handle the problems in the theory and practice such as the subject scope of industry association, characteristics and forms of industry association’s restrict competition behavior and standards as well as the object the effect factor.The article is divided into two parts. The first section is the first part. The author analyses the present situation of the industry association’s restrict competition and the existing problems. Industry association’s restrict competition behavior is becoming more and more common, but the law lacks a complete clear constitutive requirements for industry association’s restrict competition behavior and the particularity of the industry association’s restrict competition behavior has not due consideration. The status of industry association’s limiting competition and the problems existing in the theory and reality calls for the targeted carding and research on constitutive requirements of industry association’s restrict competition behavior. The second, third, forth and fifth section make up the second part. The author analysis subject factor, subjective factor, behavior factor and effect factor in turn, including their connotation, necessity and practical significance as well as specific analysis method, and solves the specific problems facing the theory and practice. In the second section the author analysis the subject factor to solve the problem of subject eligibility. Because its necessity is uncontroversial, but specific applicable disputes and doubt exist in the practice, the author focuses on these doubts and controversy, such as unincorporated association, agricultural association, professional associations and administering public practice industry association. In the third section the author analyses the subjective factor. Because it is controversial., the author proves the the connotation and necessity of subjective factor from the general rules and basic philosophy and perspective of violating business ethics. On the other hand, the author studies the three specific connotation of the subjective factor including making the behavior intention independently, the purpose of restricting competition and the consensus of restrict competition and their actual application and analysis method. In addition, the author specifically analyzes the industry association’s limiting competition behavior under the guidance of the government, then points it out that we should pay attention to this problem in our country and in specific identification, we should carefully analyze industry association’s subjective freedom and subjective intention. The fourth quarter talks behavior factor. Objective behavior has rich information. Its necessity has no controversy. The author thinks that the concrete connotation of the objective behavior factor of industry association’s limit competition behavior can be abstract as behavior to eliminate or restrict competition. Its specific analysis should be combined with characteristics and forms of industry association’ restrict competition behavior. Characteristics decided the particularity of industry association’ restrict competition behavior which quite differs from the transactors’restrict competition. Characteristics not only proves that the objective behavior factor has the necessity, but also is the main content of behavior factor. Behavior characteristics includes complex behavior nature, strong concealment, the special behavior way and the strong perform safeguard. The form of behavior is behavior’s performing way. Provisions on prohibiting monopoly agreement by administrative department for industry and commerce refines the forms of monopoly agreements behavior of industry association, but it is not comprehensive, because there are omissions. The section 5 talks about effect factor. First of all, the author proves the necessity of the effect factor from the reason for the anti-monopoly regulating limit competition and the view of legal economics and differentiate that "illegal per se rule" "ignore" the effect factor is just simplified proof of effect instead of legislation, law enforcement and judicial slams the door to the effect factor. The author studies the object and standard of effect and concludes that the effective competition is the basic object, social public interests is the final object. The standards should be targeted, "limit competition" and "substantial restrictions on competition" standard should be applicable for different behavior. Finally, the author regard first limiting competition effect possibility then the comparison of positive and negative effects as the analysis step, restrict competition possibility, market influence and exemption system as analysis methods to build a safe and efficient effect analysis on industry association’s limiting competition behavior. In the positive and negative effects of comparison and analysis of the system of the exemption, the author put forward especially to combine the strict attitude and the tolerant attitude toward the exemption conditions for industry association’s limit competition behavior. Besides, industry association’s limit competition behavior which gets exempted should conform to "reasonable limits" conditions for exemption.