Studying On The American Legal Norms On Vertical Restraints And Its Inspiration To The Anti-Monopoly Law Of Our Country

China is building a socialist market economy, but due to historical and practical reasons, there are all kinds of anti-competition behavior in the market, which suppressing competition and affecting the market order. Among them, there is a striking phenomenon that is the vertical restraints. China has Promulgated the Anti-Monopoly Law(AML), the AML Enforcement Agencies are also developing regulations, but the existing norm are too principled and lack of practical feasibility, the results of regulation are not optimistic. The United States is one of the first countries to introduce the AML in the world, which have accumulated rich theoretical and practical experience of the AML, so our country should absorb the mature experience of the USA, improving the regulation on the vertical restraints. This article is based on comparative law perspective, studying the economics and the legal theory of vertical restraints in the USA, and then discussing the historical evolution of AML norms and the rule of vertical price restraints and vertical non-price restraints, finally returning back to study our country's AML. Thesis is discussed from the following six aspects:The first chapter:The United States'Economic Theory of Vertical Restraints. In this paper, the author reviewed three school's view of vertical restraints, such as Harvard School, Chicago School and Post-Chicago School, and analyzed their practical impact of justice. Harvard School raised lever theory, Chicago School expounded principal-agent theory and transaction cost theory, and Post-Chicago School used a non-cooperative game model to study the behavior of a variety of strategies. Economic analysis of vertical restraints can be broadly divided into two categories:theories stressing the danger of anti-competitive effect, such as retail-level cartels and manufacturers'cartels, on the other hand, and efficiency theories explaining vertical restraints can be used to reduce transaction costs, prevent free-rider, certify quality and fashion and so on. Through on these issues, this paper revealed that in light of the ascendancy of the economic efficiency approach in antitrust, vertical restraint law appeared to be all but dead. But in fact, the economic efficiency approach to vertical restraints is incompletant, which has eliminated from the antitrust calculus all consideration of the various concerns centering on the dealer-fairness issues still continue to surface in a variety of contexts and legal theories outside of antitrust. On the other hand, this approach is failure to comport with reality, consumers do not believe that vertical restraints will enhance their welfare.The second chapter:The United States'Legal Theory On The Issues of Anti-competitive of Vertical Restraints. This paper defined the concept and the kind of vertical restraints in the United States. Then studied a variety of legal theory on issue of anti-competitive of vertical restraints. The Colgate principle, oppression theory and causality theory can be used to explain the vertical collusion. On the other hand, the leverage theory, predatory pricing theory, raising rivalry's cost theory and incompletant information theory can analyze the issue of excluding competitors. Because of anti-competitive effects of vertical restraints prone to make uncertainty judge, so this paper focused on studying the U.S. antitrust regulatory approach, that is per se rules and rule of reason. In the course of the application of these two rules, there appeared new form, such as non-strict per se rule and truncated rule of reason. In this theoretical research on the two rules, there also have been much debate, such as dichotomy, trichotomy, the purpose of analysis and the extreme burden of proof analysis.The Third Chapter:The Historical Evolution of the U.S. Legal Norms of Vertical Restraints. This paper studied the statute provides applying to vertical restraints, such as the Section 1, Section 2 of the Sherman Act, Section 3 of the Clayton Act and Section 5 of the Federal Trade Commission Act. Then, analyzed the AML Enforcement Angencies'Vertical Restraints Guidelines, which typically were the Ministry of Justice's Guidelines and the National Association of Attorneys General's Guidelines. After that, through stressing the most important case of vertical restraints outlined the general picture of the case law. Finally, described the proposed comprehensive reform of vertical restraints law in U.S. academic, introducing the structure rule of reason to regulate vertical restraints.The fourth Chapter:The Vertical Price Restraints Law of the USA. First, this papers studied the statutory provision:1 Section of the Sherman Act, through the development of case law-Kiefer—Stewart Co., v. Sheagram & Calvert Co., Albrecht v. Herald Co., and State Oil v. Kahn, revealing that the per se rule has changed into the rule of reason in the case involved maximum resale price maintenance, and further analyzed the situation when there were both maximum resale price maintenance and vertical non-price restraints. Secondly, studied the Section 1, Section 2 of the Sherman Act and Section 3 of the Clayton Act, though the development of case law-Dr. Miles Medicine Company, Petitioner, v. John D. Park & Sons Company., U. S v. General Electric Co., United States v. Colgate & Co., and Leegin Creative Leather Products, Inc. v. PSKS, Inc., dba Kay's Kloset…Kay's Shoes…, revealing that there were much antitrust legal essential in the resale price maintenance and minimum resale price maintenance, further analyzed the permissible means to control downstream and wether it was illegal when there were vertical price restraints and vertical non-price restraints. Finally, researched the price recommendation system from two perspectives:Section 1 of the Sherman Act and the lawful price recommended elements.The Fifth Chapter:The Vertical Non-price Restraints Law of the USA. First of all, this paper studied the vertical geographic and customer restraints, describing the type of such restraints, through the development of the case law-White Motor Co. v. United States, United States v. Arnold Schwinn & Co., Continental T.V., Inc. v. GTE Sylvania, Inc., and Post-Sylvania case, revealing the per se rule has changed into the rule of reason when the case involved such restraints, and then compared such restraints with the other types of vertical non-price restraints, analyzed the situation when there were both such restraint and the other types of vertical non-price restraints. Second, starting through the statutory law, such as Section 1 of the Sherman Act, Section 3 of the Clayton Act and Section 5 of the Federal Trade Commission Act, Article 5, through the case law-Standard Oil Co. v. United States and Tampa Electric Co. v. Nashville Coal Co revealing the important factors of anti-competitive effect of exclusive dealing, and further comparing exclusive dealing and other types of vertical non-price restraints, analyzing the situation when there were both exclusive dealing and other types of vertical non-price restraints, in sum got the useful experience of regulating exclusive dealing. After that, studied the U.S. antitrust law against tying, through the analysis of elements of tying, which can be divided into two kinds of products and tying agreements and the illegality of tying, which can be described as enough market power, impeding the tying product market competition and the legitimate business reasons as a defense, overall showed the United States tying regulation. Finally, studied the franchise contracts which frequently contained exclusive dealing, geographic and customer restraints, business representation control, tying, resale price maintenance and so on, and then analyzed how the United States antitrust law regulated franchising.The Sixth Chapter:The Provides of the Anti-Monoply Law of China on the Vertical Restraints and Its Improvement. This article first discussed specific provisions regulating vertical restraints, mainly Articles 14-15, and Articles 17-19. Articles 14-15 provided the vertical monopoly agreements, this paper held that they meet the specific conditions of our country and complyed with international legislation on the general trend, but the legislative models were flawed, the license terms was uncertain. Articles 17-19 regulated the exclusive dealing and tying, but the there were apparent defects, which needed to be improved. Then, explored the mature experience of the United States vertical restraints law, which can enlighten our AML At last, suggested the feasible way to improve the regulatory system of vertical restraints is publishing the Vertical Restraints Guidelines by the Anti-Monopoly Committee, and further described its main elements.