The Institutional Loopholes Of Abuse Of Dominant Market Position And Their Filling

The abuse of dominant market position regime is one of the pillars of the Anti-Monopoly Law and plays an irreplaceable role in maintaining free competition.However,as the system follows a two-stage application logic in practice,it leads to the indulgence of market behaviors with monopoly harm committed by operators who do not have a dominant market position,thus creating a loophole in the system.Therefore,this paper discusses the loopholes of the system and their filling,divided into the following three parts.The first part clarifies the loopholes of the abuse of dominant position system and its hazards.The abuse of market dominance regime is subject to the operator having a dominant market position,so that operators who do not have a dominant position in the market to implement tied sales,exclusive transactions and other behaviors are excluded from the scope of regulation,resulting in loopholes in the system.Some operators do not have a dominant market position,but it still has a trading advantage,so that it can implement unreasonable trading behavior to the counterparty,the behavior is detrimental to competition and consumer interests,and may even cause a cumulative effect,resulting in serious anti-competitive effect.Moreover,in practice,the abuse of the distribution rules of burden of proof of market dominance system leads to the failure of anti-monopoly civil lawsuits,which makes the legislative purpose of anti-monopoly Law fail.Therefore,the aforementioned gaps in the system need to be filled as a matter of urgency.The second part uses the vertical monopoly agreement system to fill the above system loopholes.Through extraterritorial investigation,the United States pays more attention to the analysis of the substance of the regulation of vertical monopoly agreement,although the conduct may be the result of unilateral abuse of market power by the operator,even if the behavior has the appearance of an agreement,it is not regulated by the vertical monopoly agreement system,while the EU,on the contrary,as long as the behavior has the form of an agreement,although the behavior may be the result of unilateral abuse of market power by the operator,the conduct is also regulated by a vertical monopoly agreement regime In order to fill the above-mentioned loopholes,China should learn from the EU’s regulatory model and improve the content of Chinese vertical monopoly agreement system in order to regulate the behavior of monopolistic operators who do not have a dominant market position but have the appearance of an agreement.For monopolistic operators who do not have a dominant market position and do not have the appearance of an agreement,Part Ⅲ advocates the addition of other regimes to fill the above-mentioned institutional loopholes.On the one hand,the abuse of a position of relative advantage regime could be introduced into the Anti-Monopoly Law.This system emphasizes the dependence of the inferior party on the superior party in a specific transaction relationship,and can provide a basis for regulating operators with certain market power to commit monopolistic acts and fill the above-mentioned loopholes.At present,some countries have strict regulations on this system,while China only reflects it in some lower laws,therefore,it is necessary to introduce this system into the Anti-monopoly Law.On the other hand,we can learn from the attempted monopoly system of the United States,which is concerned with operators who enjoy certain market power but do not have a dominant position in the market.The above-mentioned loopholes can be filled.