Analysis Of Moutai And Wuliangye Case In Perspective Of Anti-monopoly Law

With the gradual improvement of market competition mechanism, various kinds ofmonopolistic behavior emerging, there is a need for the anti-monopoly law to regulate thesewrongful acts. In our current market economy, there is an increasing number of marketbehavior violating the purpose of fair competition, thus causing serious damage to the otherbusiness operators’ interests and even the social public interests. Especially some well-knownenterprises at home and abroad, such as Kweichow Moutai Co., Ltd (short for “Moutai”) andWuliangye Group Co., Ltd (short for “Wuliangye”), blatantly monopoly the domestic market,which not only undermine our market economic order, but also pose a great challenge to ouranti-monopoly law regime. Moutai and Wuliangye’s maintenance of minimum resale price,which is prohibited by Article XIV of People’s Republic of China Anti-Monopoly Law,belongs one kind of vertical restrictive competition agreements. With Moutai and WuliangyeCase being the first case about punishing vertical restrictive competition agreement, and withthe non-public law enforcement process and insufficient explanation of punishment grounds,it leads debates both in the public and in the academic. The relevant controversial pointsconcentrate on three aspects: whether the price limit order of Moutai and Wuliangyeconstitutes the vertical restrictive competition; if it does, whether Moutai and Wuliangyeenjoys immunity; whether the punishment by anti-monopoly law enforcement agencies islegal and reasonable. This article mainly analyzes these questions.This article,except the Introduction and Conclusion,consists of five parts:Part I mainly introduces Moutai and Wuliangye Case and relevant controversial points.With the brief introduction of Moutai and Wuliangye Case, this article presents debates aboutthis case, and summaries main controversial points.Part II comments and analyses Moutai and Wuliangye Case’s controversial points. Atfirst, this article analyses the nature of Moutai and Wuliangye price limit order, and on thebasis of generic theory, mainly focusing on the vertical anti-monopoly agreement, that is,vertical restrictive competition agreement. Then, with reference to the pe se rule andreasonable analysis principle, the article discusses the advanced anti-monopoly countries’position of vertical restrictive competition agreement, and in consideration of relevant articles of People’s Republic of China Anti-Monopoly Law, concludes that our country takes“General Provisions plus Exemption” model position, upon which this article focus on thespecific content of price limit order, finding that price limit order can nor be justified, thus notbeing exempted. What’s more, this article also introduces Ruibang v. Johnson&Johnson Casein order to support the identification on the nature of Moutai and Wuliangye by theanti-monopoly law agencies. At last, with the analysis of punishment decision on Moutai andWuliangye by Guizhou Province Price Bureau and Sichuan Provincial Development andReform Commission, founding that the two agencies’s punishment range is too light and thatits law enforcement is so lax and finally confiscates illegal gains.Part III is about the perfecting of Anti-Monopoly Law from the perspective of Moutaiand Wuliangye Case. In the light of above discussion, this article puts forward five legislativeproposals, which are clearing the standard of maintenance of resale price, establishing aunified anti-monopoly law enforcement agency, perfecting administrative fines discretion,improving the subject of legal responsibility and canceling the system of confiscating illegalgains.