| Resale price maintenance is a vertical restriction,which is a price restriction agreement reached between manufacturers in the upstream and resalers in the downstream.Resale price maintenance has the dual effect of both promoting and restricting competition,so the determination of illegality of such agreements is complicated.In practice,there are two paradigms for determining whether the illegality,namely,the principle of Per se Rules and Rule of Reason.With regard to China’s anti-monopoly law enforcement and judicial practice,the law enforcement and judicial agencies adopted two paradigms respectively.Law enforcement agencies generally believe that resale price maintenance does not require proof of the effect of eliminating or restricting competition,that is,the principle of Per se Rules is adopted.However,Judicial agencies believe that the illegality should be based on the effect of eliminating and restricting competition,that is,the principle Rule of Reason is adopted.There are also differences of opinions in the academic world.On the one hand,the binary paradigm differences between law enforcement and justice have led to a crisis of different sentences in the same case,and on the other hand,the deterrence and predictability of the anti-monopoly law are declining.Therefore,the selection and reconstruction of the paradigm is very important for the improvement of China’s anti-monopoly legal system,and it should be the focus of the revision of the new Anti-Monopoly Law and its supporting legal interpretation.Resale price maintenance paradigm is a historical category.In the early 20 th century,resale price maintenance entered in the field of anti-monopoly regulations for the first time.Today,some countries and regions have basically formed paradigms that conform to their respective values and market conditions.The internal driving force of this process mainly comes from the concept of legal interest and value goals generated at different stages of social economic development.Therefore,we should analyze the development and evolution of the anti-monopoly law from a historical and dynamic perspective,and finally choose a paradigm that conforms to the actual situation of China.Based on this,the core issue that this article explores is how to effectively absorb and learn from the practical experience of international antitrust law and adapt to future development trends,and to construct an effective paradigm that suits my country’s national conditions,to apply this paradigm to explain the current antitrust law and to put forward the application framework.The first chapter of this article is divided into three parts.The first part respectively introduces the dual paradigm of the determination of the illegality of the resale price maintenance,that is,the principle of per se rules and the principle of rule of reason.The second part analyzes the current legal institution of the resale price maintenance system in China and the implementation of the system;first,this article details the differences between the judicial and law enforcement about resale price maintenance cases in China,which is embodied in the adoption of the principle of rule of reason in the judicial cases and the adoption of per se rules in the enforcement cases.The second part introduces specific provisions of the "Anti-Monopoly Law" concerning the maintenance of resale prices,as well as disagreement on the connectivity of Article 13,paragraph 2,and on the cohesion between Article 14 and Article 15.The third part proposes the path that the research should follow to determine the illegality of the resale price.This article believes that the construction of the paradigm should follow the path of concept,theory,and empirical aspects,and try to find the commonality of the three aspects.The arguments of this article are developed one by one from the abovementioned three aspects.Chapter two discusses in depth the conceptual changes and theoretical evolution of the determination of illegality of resale price maintenance.The modern antitrust law was born in the United States.At the beginning of the legislation of the first antitrust law,the Sherman Act,the maintenance of free market order was the core value of the law.With major changes in the economic situation,the value of the US antitrust law is tilted toward economic efficiency.The court also paid more attention to the economic analysis of resale price maintenance in its judgment,and then gradually paid attention to consumer welfare and the protection of small and medium-sized enterprises,which reflected the pursuit of fair value.Values are the product of the development of market economy and changes in social concepts.Although there are certain conflicts between different values,they also complement each other and complement each other,so they eventually merge with each other.The changes in values are accompanied by the evolution of economic theories.At the same time,the evolution of theories also affects the values of anti-monopoly law.First of all,the theory of American antitrust policy evolved from the Harvard school industrial organization theory during the Great Depression,which advocated that the government should strengthen its intervention in the market,to the Chicago school that advocated that the market has self-regulation capabilities and that the government should reduce intervention to improve economic efficiency.And then to the post-Chicago school that pays attention to different economic theories and advocates strengthening the implementation of antitrust laws.the theoretical evolution of EU competition policy is very similar to that of the United States.Initially,the Freiburg liberal school advocated strengthening the legal protection of market competition,for that at the beginning of the establishment of the Community,the goal of establishing a common market to eliminate trade barriers among member countries,and then to the Brussels School whose primary goal is to unify the European Community market,while paying attention to the competitive market structure.Chapter three is an empirical study on the determination of the illegality of resale price maintenance.The statutory law of the United States adopts an inherently illegal attitude towards resale price maintenance,while the antitrust law has undergone a change from the per se rules to rule of reason;the EU competition law text lists resale price maintenance as a core restriction,but its attitude towards resale price maintenance in the exemption rules has been eased,and economic analysis has been gradually adopted in judicial cases.The third section of Chapter 3 compares the empirical experience of the United States and the European Union’s.Based on the comparison,this article finds that the United States and the European Union have reached a consensus on the application of the principle of rule of reason,and there is a convergence of the structured rule of reason.The structural rule of reason avoids the high cost of comprehensive rule of reason,and at the same time solves the disadvantages of per se rules which lack of flexibility.Above all,China should also construct a structural rule of reason that suits its own national conditions.Chapter four is the construction of China’s structural rule of reason.First,based on the empirical experience summarized in the previous article,several factors should be considered in the selection of paradigm,including the competitive effect of resale price maintenance,the analysis of the pros and cons of the dual paradigm,the value objective of the antitrust law,and the degree of supply of economic theories.After considering the above factors,this article believes that the principle of rule of reason is the proper choice for regulating resale price maintenance.Due to the insurmountable cost dilemma and the uncertainty of the result of the rationality principle,a structured paradigm reconstruction should be carried out on the basis of the rule of reason.First,the structured rule of reason breaks the traditional dichotomy of resale price maintenance agreements and divides them into three types: agreements that severely restrict competition,agreements that restrict competition,and agreements that do not restrict competition,and they are regulated separately.Secondly,safe harbor rules can be formulated for agreements that restrict competition without serious effects,eliminating the cumbersome comprehensive and reasonable analysis.Finally,this article clarifies the legal framework after adopting the structured Rule of Reason,and discusses the application methods under this legal interpretation framework. |
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