The Conflict And Choice Of The Values In The Antitrust Law

China has carried out the policy of reform and opening to the outside world for more than twenty years. With the reform in the economic structure progressing, the internal problems have been emerging. The society face the task of regulating monopoly, the Congress are preparing to enact the antitrust law, but the expectations of people are different. The government hope to shape a uniform market order. Private enterprises hope to reduce the standards of some fields which were set up in planned economy system. State-owned enterprises hope to make sure the limits within which they can get monopolistic profit. Consumers hope to punish the unfair competition. These different arguments mean that the antitrust law includes different values which may conflict each other,for example, seeking economic efficiency and protection of consumers and small and medium-sized enterprise. The thesis is trying to find a common criterion for the values which may conflict each other. The thesis includes four chapters.In the first chapter the thesis reviews the history of the antitrust law. In American history of the antitrust law the thesis pays attention to the Sherman Act, the FTC Act, the Clayton Act. By researching the three Acts the thesis gets the conclusion that lawmakers of the antitrust law tried to achieve a number of goals. The main concern was with firms acquiring or possessing enough market power to raise prices and to restrict output. Artificially high prices were condemned not for causing allocative inefficiency but for unfairly transforming consumers wealth into monopoly profits. All purchasers, whether consumers or businesses, were given the right to purchase competitively priced goods. All sellers were given the right to face rivals selling at competitive prices. The antitrust is trying to enable individual to get the profits of the economic development.The government are also trying to decentralize economic, social, and political power from the private enterprises and reduce the influence of the power of business to the political system. The Congress pay attention to opportunities for small and medium-sized enterprise to compete. After twenty century fifty year's economic factors are playing an important role in the antitrust in America. In twenty century fifty year's the theory of the Harvard School are playing an important role in the antitrust in America. In twenty century seventy year's the Chicago School are playing an important role in the antitrust in America. Seeking economic efficiency becomes the most important value in the antitrust. In European Part the thesis thinks the values of the Europe competition law include: Setting up a uniform EC market, Seeking economic efficiency, safeguarding social justice and protection of consumers and small and medium-sized enterprise.In the second chapter the thesis analyzes the theories which different values are based upon. Firstly, the thesis analyzes the economic theory. After introducing the basic economic theories and models, the thesis mostly analyzes the theory of the Chicago School which has a great influence on the antitrust law. The thesis points out the disadvantage of the theory of the Chicago School. Firstly , the thesis analyzes the welfare theory of the Chicago School. The Chicago School think welfare can be measured by money. That means the welfare will not be reduced if a dollar transferred from a consumer to a monopoly. The premise plays an important role in the theory of the Chicago School, but the premise can not be justified fully. Secondly, the thesis analyzes the allocative efficiency theory of the Chicago School. The Chicago School consider that we should consider allocative efficiency by potential Pareto efficiency, but this opinion can not explain preferences that people do not express with their dollars, for example, a distrust of large concentrations of economic or political power in private hands, or a preference for opportunities for small enterprises. Thirdly, the thesis analyzes the theory of people who cares only about his own interest by accurate calculation and points out that this theory makes the Chicago School avoid establishing their philosophical theory. This theory makes the Chicago School ignore the internal value of freedom. The thesis also analyzes the dimension of law which mostly considers fairness. The value of fairness of law in economic field means that firstly law creates the market's circumstance which keep free competition and fair competition so that everyone has the opportunity to succeed. Secondly law guarantees that the social fortune should be distributed fairly. In the antitrust law the protection of consumers and small and medium-sized enterprise is based on the value of fairness of law. The monopoly impairs free choice of consumers and restricts free competition of small and medium-sized enterprise. The fairness of antitrust law means that nobody can impair freedom of someone else by virtue of his own freedom. The antitrust law makes everyone get the opportunity for development. The monopoly can not use these means which restrict the freedom of small enterprise. By analysis the thesis considers that each value has its own advantage and disadvantage. The economic dimension cares only about economic efficiency and ignores the value of fairness. The value of fairness needs a criterion. The thesis tries to use freedom to contain different values and provide a criterion for comparison between different values.In the third chapter, the thesis tries to reconstruct the pillar value in the antitrust law. The thesis considers freedom as the pillar value in the antitrust law. The freedom in the thesis is based on Sen's theory of freedom. After criticizing the theory of self-interest reason the thesis considers rationality pluralistic. Rationality includes not only pursuing self-interest but also sympathy and commitment. The core of rationality includes reason and self-scrutiny. The criterion of freedom is capability. The capability is measured by functionings. The functionings reflect all kinds of states which people cherish. The functionings retain impersonal criterion and care about interpersonal differences. The capability is sets of all kinds of functionings which people can achieve. The capability and the functionings provide different information, the functionings reflect the goals which people have achieved, the capability reflects the goals which people can achieve. The thesis analyzes freedom from three dimensions which include substantive freedom and formal freedom , negative freedom and positive freedom , process freedom and opportunity freedom. By the third dimension Sen tries to transcend deontology and utilitarianism and look on freedom in a more extensive view.In the second part of the third chapter the thesis expatiates on development as freedom. First the thesis expatiates on criticism about utilitarianism. Standard of utility is incorrect, utility as the only standard is incomplete, utilitarianism ignores impact of distribution. Secondly, the thesis expatiates on the relation between freedom and development of agent. Pursuing freedom means value of agent. Freedom is the end and means of development. Thirdly, the thesis thinks that the system of market can promote freedom, meanwhile Sen realizes that there are some problems in the market. The thesis thinks that the existence of monopoly means that the strong man restricts the freedom of the poor man.In the third part of the third chapter the thesis expatiates on the relation between the antitrust law and freedom. Firstly, the thesis shows that monopoly restricts freedom and points out that monopoly restricts process freedom and opportunity freedom. Secondly, the thesis expatiates on the value of the antitrust law and points out that the purpose of the antitrust law is to protect and expand individual freedom in market. The purpose of the antitrust law is not to exclude individual responsibility. The purpose of the antitrust law is to make individual have freedom to take on responsibility. Thirdly, the thesis considers that freedom inherits and transcends the value of fairness and economic efficiency.In the fourth chapter, the thesis expatiates on the frame of the antitrust law by freedom. Firstly, the thesis expatiates on the goals of the antitrust law which include fairness and freedom in competition in market. Secondly, the thesis considers that the antitrust should include forbidding cartel, forbidding abuse of dominant position in market, controlling merger. The thesis argues that the means by which we can resolve the problem of administrative monopoly is the reform in the political structure and the antitrust law should only regulate the economic monopoly.