Research On The Illegality Judgment Standards Of Resale Price Maintenance Agreement From The Perspective Of The Rule Of Reason

In recent years,with the steady development of the market economy,anti-monopoly law has received unprecedented attention in our country.At the same time,judicial disputes related to anti-monopoly are increasing,so it arouses people’s continued attention to monopolistic behaviors.And the resale price maintenance agreement has strong flexibility in application,therefore,it is often used in market competition.However,the attitude of the antitrust law is very unclear,which leads to widespread attention and research in academic community.With the increasing number of cases of resale price maintenance agreements,there is a certain degree of discrepancy in judicial decisions.The essential reason is that the understanding of resale price maintenance agreements cannot be unified at the theoretical level yet,which leads to the lack of clear criteria for judging the illegality of resale price maintenance agreements in practice.This academic vacancy will cause confusions in judicial practice and even will cause different judgments in the same case in the future.Up to now,there is no clear applicable principle for resale price maintenance agreements in China’s anti-monopoly law.Therefore,there have always been disputes about whether the resale price maintenance agreement should apply the customary illegal per se rule or the rule of reason in trend.The different applicable principle will also affect the analytical approach to determine the illegality judgement standards of the resale price maintenance agreement,which means the applicable principle is the prerequisite and basis for discussing the the illegality judgement standards of resale price maintenance agreements.From the current domestic research,the academic community basically agree that the resale price maintenance agreement has a dual effect of competition.Therefore,under the premise of applying the rule of reason,the focus of this article is how to correctly and effectively measure the dual effects of resale price maintenance agreements.Exploring the illegality judgement standards of resale price maintenance agreements should be not only discussed at the abstract level,but also discussed on how to implement the judgement standards into specific cases.The correct way to deal with it is to combine legislation and practice.Only in this way can the judgment standards not only meet the requirements of the legislative purpose,but also be effectively implemented in practice.In this context,this article is divided into five parts.The first part is to explore that the applicable principle of the resale price maintenance agreement should be the rule of reason from the perspective of jurisprudence and legislation,which will be concluded that the rule of reason is the prerequisite for studying the illegality judgement standards and the rule of reason is also applied in judicial practice.But through combing and comparing judicial cases in recent years,it is found that the illegality judgement standards of resale price maintenance agreement is too rough to be unified,which lays the foundation for the following thinking.The second part mainly analyzes the objective illegality judgement standards of the resale price maintenance agreement,starting from the legislative purpose.And the objective illegality judgement standards will be concentrated in three aspects:economic efficiency,consumer interests,and social public interests.The third part mainly explores the subjective illegality illegality judgement standards of resale price maintenance agreements.Through the analysis of judicial cases,it is found that in practice,it is often prohibited to implement resale price maintenance agreements for the purposes of "abusing market power to exclude competitors" or "forming cartels".Therefore,the second and the third part are combined to determine the illegality judgement standards of the resale price maintenance agreement,which can make up for the lack of standards in the current judicial practice field.And the fourth part is mainly to rationalize and improve the entire standard system from the perspective of practice and interpretation,and give suggestions on legislation and justice.On the one hand,we hope to establish a "safe harbor" system in legislation,that is to say,the agreement behaviors with less objective harm and less subjective malignancy are excluded from the inspection of illegality,which can save the cost of judicial review;on the other hand,in practice,there is a phenomenon that the burden of proof is not clear,especially the determination of subjective standards is often too difficult to prove.Therefore,it is necessary to clarify the burden of proof system and distribute the burden of proof fairly to maximize the fairness and justice of the outcome of the case.Finally the fifth part summarizes the full text and gives the concludes.