The Challenge And Innovation Of Antitrust Regulation Of Resale Price Maintenance In China

Due to the ambiguity of antitrust legislation,the application of resale price maintenance is encountered with challenge in practice firstly.Competition agencies and judicial authorities are divided on the regulation principles and means of resale price maintenance.It's found through the analysis of our law enforcement and judicial cases that the administrative organ adopts "the principle of defenseable presumption of violation ",while the judicial organ adopts" reasonable principle ".The difference of regulation principle not only leads to the situation of different illegal judgment result in similar cases,but also it prevents operators from guiding their business practices through precise and effective compliance guidelines in the face of resale price maintenance.The application of resale price maintenance has also encountered challenges inthe theoretical interpretation,and the defenseable presumption of illegality and the principle of reasonableness have strong arguments in both economics and law.The economic argument that supports the defenseable presumption of illegality argues that resale price maintenance limits the pricing power of downstream dealers,which may facilitate collusion between manufacturers and indirectly support retailer cartels.At the legal level,free competition is regarded as the core of anti-monopoly law,then retail prices should be determined by competition rather than by the manufacturer.In addition,from the current provisions of China's anti-monopoly law,it is more in line with the legislative intention to regulate the principle of the defenseable presumption of illegal resale price.On the other hand,the Chicago School of Economics,which supports principles of rationality,argues from the standpoint of efficiency that resale price maintenance can effectively avoid free-riding behavior,promote dealers to raise the level of non-price service,and promote new companies and new products to enter the market,so that economic efficiency is improved.Post-Chicago School also proposed principal-agent theory and transaction expense theory to support the rationality of resale price maintenance.At the level of legal interpretation,it is necessary to prove that the resale price has the effect of excluding and restricting the competition,which requires a comprehensive analysis of reasonable principles if it's presumable that the resale price remains illegal.Through comparative analysis of extraterritorial experience,In general,there are two similar models of tit-for-tat,for example,the EU,Japan,Germany,Australia and Taiwan adhere to the principle of the prohibition of exceptional exemptions,while the United States has experienced an evolution from its own law-breaking to rational principles.Whether it's a contestable presumption of illegality or a reasonable principle,both of them have their own limitations,and the defenseable presumption of illegality is too harsh to promote economic development and innovation.The overall spread of reasonable principles is not in line with the actual situation of market economy development.Based on the actual situation of our country,the analysis method of resale price maintenance should be innovated in order to promote the unity of antitrust regulation on the resale price maintenance.On the basis of the principle of continuance of the contestable presumption of violation to make fine analysis,this kind of analysis should be carried out from the main body,market structure and industry.In the innovation of specific system,it is divided into two aspects:regulation refinement and exemption system introduction.In the detailed part of regulation,there is necessary to first establish a rapid review system.It's developed from three parts,such as subject classification review,content and purpose review and exemption review.In addition,promoting the distinction between the judgment standards of civil and administrative litigation and clearing the burden of proof to exclude and limit the effect of competition can make the defendant bear more burden of proof.In the end,it makes analysis of general provisions of the exemption system.The current exemption for resale price maintenance in China relies mainly on article 15 of the Antimonopoly Act and the rationale for exemptions is focused on economic efficiency.In addition,the resale price maintenance exemption in the field of books and luxury goods is also taken seriously.In the new industry,taking the showrooming phenomenon as an example,it is determined that the resale price maintenance under the showrooming phenomenon should not be exempted and should be declared illegal.While Exemptions for resale price maintenance in the fast elimination market shall be discussed separately.High-priced fast consumer goods should be subjected to a comprehensive effect review in the review process compared to ordinary fast consumer goods.By the overall innovation of analytical methods,the refinement of regulation as well as the study of exemptions,it to achieve the optimal solution to the resale price maintenance problem.