A Study On The Determination Of Synergetic Behavior In Anti-Monopoly Law Of China

Countries all over the world regard cooperation agreement or conspiracy as the essential element of synergistic behavior in anti-monopoly law,and generally speaking,the key to scientifically and effectively identify the behavior is to master the evidence of collusion between operators.However,due to the non-public or non-written forms used by operators to reach the consensus,the countries all over the world fall into the bottleneck which is difficult to prove the consensus.In order to solve this problem,the United States and the European union in the process of practice,gradually evolved a more reasonable path-" meaning contact+ behavior consistent + no reasonable defense".The author thinks that our country can follow this path and infer the reason from the result.Specifically,the appearance of consistent behavior is taken as an objective result,and then indirect evidence and shift of burden of proof are used to identify the cause of the result.Under the comprehensive consideration,if it is found that there are market conditions conducive to collusion,and the exchange of price and other key information between operators,supplemented by the operator can not make a reasonable defense can be identified as collaborative behavior.On the contrary,it should be recognized as a legal act.In order to demonstrate and confirm the feasibility and rationality of the path in China,the author divides the article into the following four parts:Part I: The concept,characteristics and constitutive requirements of synergistic behavior in anti-monopoly law.This part is based on the appellation and definition of synergistic behavior in anti-monopoly laws of various countries,and takes China as a typical example,and summarizes it by integrating the views of scholars and legislators.The particularity of the characteristics and constitutive elements of synergistic behavior in this field of view is summarized,so as to lay the groundwork for how to identify synergistic behavior in the following.Part II:Obstacles to the identification of synergistic behavior in China's anti-monopoly law.By the method of empirical analysis,the judicial organs and anti-monopoly law enforcement agencies in recent years to identify the case of synergistic behavior to conduct an all-round analysis.In order to understand the judicial and law enforcement status,this part first analyzes seven typical monopoly agreement disputes in judicial practice.Then,this paper focuses on the analysis of the case of " estazolam drug price monopoly" in 2016.On this basis,it is concluded that there are three obstacles in determining the synergistic behavior inantitrust law in China: the difficulty in proving the synergistic agreement,the difficulty in distinguishing the synergistic behavior from the parallel behavior,and the difficulty in defending the reasonable grounds for the fraudulent use of the operator.Part III: The experience of identifying synergistic behavior in extraterritorial anti-monopoly law.This part takes the United States and the European union,which have profound theoretical foundation and rich practical experience in antitrust law,as an example,and uses the form of tables to sort out and analyze their multiple classic cases and legal norms.On this basis,using the method of comparative analysis,in line with how to identify the synergistic behavior in the anti-monopoly law as the main line,the author makes a triple comparison between the two-to-oneself ratio,to-each other ratio,to our country ratio,and summed up the experience and lessons that should be learned in our country in the comparison.Part IV: In line with the logic of one-to-one correspondence between problems and solutions,this part makes assumptions and responses from three aspects: improving the proof of synergy agreement,reasonably distinguishing parallel behavior from synergistic behavior,and strengthening the substantive examination of the reasons for exemption.