Research On Legal Regulation Of Non-Price Vertical Monopoly Agreement

Non-price vertical monopoly agreements refer to any agreements,decisions,or concerted practices among undertakingswithout competitive relationship at different stages of trading,which eliminate or restrict the competition of relevant market by non-price means,such as exclusive trade,selective trade and tying.Scope of monopoly agreements is narrowing in China's Anti-monopoly Law,which shows that our country is hesitate at whether non-price vertical monopoly agreements should be regulated or not.Article 14.3 of Anti-monopoly Law stipulates that non-price vertical monopoly agreements should be identified by Anti-monopoly Execution Authorities,but no non-price vertical monopoly agreement has been identified illegal by Anti-monopoly Execution Authorities till now.However,this miscellaneous provision above hinder the efficiency value and fair value of judicial remedy instead.Since Anti-monopoly Law carried out in 2008,more and more non-price vertical monopoly agreements have shown anti-competition effects.Non-price restriction will finally lead to high prices.Furthermore,conflicts of industrial policy with competition policy cannot be overlooked,which shows shortage of Anti-monopoly Law in regulating non-price vertical monopoly agreements.Observed from comparative law,anti-monopoly law of America and Europe provide a template for China's legislation in non-price vertical monopoly agreements.In the first place,article 1 of Sherman Act and article 101 of the TFEU prohibit all kinds of monopoly agreements in principle.Secondly,when it comes to the juridical practice,America expericenced the following changes: “per se rule” applied to all vertical monopoly agreements with the use of property law strictly and formally in the begining,then case of Sylvania started to apply the rational principle to analysis the economic effects of non-price vertical monopoly agreements.As for Europe,there is a legal framework of “banish & exemption” formulated by regualtions and guides,besides,block exemption especially for small and medium-sized enterprises is established as well.Thirdly,public enforcement also contributes to establishing coorperation rules to coordinate duplicate Antimonopoly Execution Authorities.However,economic effects of non-price vertical monopoly agreements are controversy among economists,therefore,either positive economic effects or negative economic effects of non-price vertical monopoly agreements shall be both considered when regulate this agreements.In the one hand,non-price vertical monopoly agreements conduce to sovle the “free rider” and “lock-in” phenomena to a certain extent,in the other hand,non-price vertical monopoly agreements also generate problem of closed market and convenient collusion mechanism.Based on competitive market theory,only potential competitors in and out of the market freely would the current operators be forced to lower its maximum profits to zero economic profits,improving consumer welfare.Based on transaction cost economic theory,“lock-in” problem in specific investment cannot be completely solved by non-price vertical monopoly agreements,opportunism behavior may happen once the agreements are concluded,which brings about the monopoly power.On the baisc of two economic theories above,regulation of non-price vertical monopoly agreements aims at solving negative externality of non-price vertical monopoly agreements by clearing obstacles of entering or existing market for potential competitors and preventing the formation of monopoly power.When lay down the regulation concretely,efficiency value shall be deemed as the most important value and fair value shall be considered either.In addition,exemption and leniency shall be reasonably established as well.In conclusion,there are two solutions to solve the problem of non-price vertical monopoly agreements: one is extending scope of applicaiton of monopoly agreements by amending Anti-monopoly Law directly,the other one is developing guides by Anti-monopoly Execution Authorities according to the mandate of Anti-monopoly Law.First of all,establish the leading position of competition policy,carry out fair competition censorship,evaluate and clean up the anti-competition industrial policy regularly.To be more specific,as for substantial requirements: list chief manifestation of non-price vertical monopoly agreements,ensure rational principles in judging whether an agreement breaks Anti-monopoly Law,delineate the relevant market,detail exemption regulation of non-price vertical monopoly agreements.Moreover,as for procedural requirements: establish interactive mechanism of Anti-monopoly Execution Authorities to improve enforcement efficiency,enrich the range of deduction of leniency policy so as to stimulate surrender of subjects of vertical non-price monopoly agreements,encourage private litigation of this agreements.