Research On Anti-monopoly Law Regulation Of Resale Price Maintenance Agreement

Resale price maintenance agreements,also known as vertical price agreements,have become the focus of anti-monopoly regulation due to the complex competitive effects.Under the influence of practical exploration and the development of economic theory,the United States has moved from the traditional Per se illegal to the reasonable principle.The EU has included it as a core restriction.However,under the influence of the "Leegin case" in the United States,the EU relaxed the core restrictions.The scope of the regulation is allowed to apply for exemption in individual cases,forming a regulatory model of "Per se illegal + exception exemption".In general,there are two different criteria for judging the illegality of a resale price maintenance agreement,namely,the Per se illegal and the reasonable principle.At present,there are some contradictions between theory and practice in the process of determining the illegality of resale price maintenance agreement in China.In theory,there are great differences on which model to adopt,which can not provide effective guidance for practice.In practice,China’s anti-monopoly law enforcement authorities choose to adopt Per se illegal,while the judicial authorities generally prefer to apply the Reasonable Principle,resulting in the phenomenon of "different judgments in the same case",which is not conducive to giving effective guidance to market operators and undermining the dignity of the rule of law.The reason for the above differences in the application and interpretation of resale price maintenance agreement is that the relevant provisions of China’s anti-monopoly law are too principled and do not specify the specific criteria for judging the illegality of resale price maintenance agreement.Resale price maintenance agreement has the dual competitive effect of promoting competition and anti competition.Its adoption of Per se illegal principle is questionable.The view of supporting the principle of Per se illegal ignores the effect of the agreement on promoting competition,which is a wrong interpretation of the principle of rationality.The antimonopoly law needs to treat the commercial behavior in market activities scientifically,including resale price maintenance.This requires a comprehensive evaluation of the competitive effect of the agreement.However,the competitive effect analysis is not a aimless analysis.There is a fixed framework.It is necessary to study the most basic and important considerations and provide a structural analysis framework.Based on the investigation of the practice in China and abroad,combined with the results of economic research,the principle of structural rationality should be the development direction of China’s anti-monopoly law.The principle of structural rationality uses the research results of economics to finalize the investigation of competitive effect,simplify the effect analysis process,avoid the rigidity of its own illegal principle and the problems of universal law enforcement and selective law enforcement,and also solve the high judicial cost of the principle of comprehensive rationality.It is more consistent with the current legislation,more suitable for the regulation of resale price maintenance of platform economy,meets the requirements of the modesty of anti-monopoly law enforcement and complies with the international anti-monopoly trend.the principle of structural rationality helps to solve the differences in judgment standards in practice,absorb economic theories,save judicial costs,and realize the typed regulation of vertical monopoly behavior.Finally,in terms of specific suggestions for improving the anti-monopoly regulation of resale price maintenance agreement,since the strong market power of operators is the basic factor for the damage of economic efficiency,the introduction of "safe harbor" system plays the role of case diversion and improves judicial efficiency.In view of the unclear provisions on the burden of proof in China,combined with the competitive effect of resale price maintenance agreement,it is advocated that the plaintiff should bear the burden of proof to exclude and restrict competition,and provide a structured analysis step for the burden of proof system.In addition,by improving the exemption provisions,solve the problem that Article 15 of the anti monopoly law is difficult to be applied.