Research On The Legal Regulation Of The Restrained Competition Agreement

Competition is the great impetus for promoting the effective enforcement of market economy, enhancing the economic efficiency, and increasing the interests of consumers. But, once the operators joint together to enforce some coordinated behaviors, it means that there is a ceasefire agreement between the operators, the free competition in the market will be restrained and the market adjustment mechanism can not perform their function, which will impair the whole social economic interest and the interest of the consumers. Hence, the Anti-trust laws of all countries put great emphasis on the regulations on the restrained competition agreement and all give severe punishment on the restrained competition agreement.The restrained competition agreement, as one of the three pillars of the substantive regulations of Anti-trust law, is such a violation which highly restricts the competition. In our country, there is still great deficiency in the system research on the regulation of restrained competition agreement and which has been the choke point in controlling and punishing the restrained competition agreement like fixed price, marketing division, and resale price maintenance. This thesis aims to make some research on how to discover, punish and restrain the happening of restrained competition agreement by researching on the relevant issues in the regulation of such agreement. The research on the restrained competition agreement is one of the main parts for the research on our country's anti-trust law, which can not only fill in the gap in our country's research field in this aspect, but also perfect the regulations on the restrained competition agreement, at the same time it can play an active role in fully developing the marketing adjustment mechanism, enhancing the whole society's economic efficiency and the interests of the consumers.There are five chapters together with one introduction and one conclusion in this thesis, all of which strive to demonstrate the regulation on restrained competition agreement systematically, deeply and comprehensively.This thesis starts from the qualitative analysis on the concept and characteristics of restrained competition agreement to point out the nature attribute of it as mutual restriction, which is such behavior as to restrict competition between the operators or industry association through agreements, decisions or coordinated behavior to restrict the business activities mutually. Through the theoretical analysis of the restrained competition agreement, the thesis demonstrated the cause, the stability and validity, the legality and fraudulency of it, so as to provide the characteristic and justification standard for exploration and extent of the circumstance proof and for the economic analysis on the effect of the restrained competition. Moreover, through the analysis on the real status of our country's restrained competition agreement, the characteristics of the restrained competition agreement in our country as publicity, government intervention, specialized field, and instruction of the industry association, etc are deducted, as well as the cause of it.In the market transactions, the clarification and standardization of the element of the violations can not only achieve the effectiveness of law and reduce difference in application, but also promote the conscientiously observance of the market subject. Hence, it is of great significance to clarify the constitutive elements of the restrained competition agreement. The elements should include the subject element as the operators or industry association, the behavior element showed as the agreements, decisions or coordinated behavior to mutually restrict the other's business activities, and the market effect element in some transaction area.Through the discussion of the different regulations in identifying the breach in the two law systems, the paper indicates the rule of identifying breach that the horizontal agreement of fixed price, restrained production, market division and the vertical agreement of maintaining the lowest re-sale price are breach of law in them. The paper also demonstrates the importance of the application of the theory of the accompanying restriction in identifying exclusions and makes up the regulations of identifying breach in the restrained competition agreement according to the basic circumstances in our country. The evidence and proof of the restrained competition agreements are foundations of realizing the legal and effective sanctions by the governments and of giving relief to the victims. Therefore, it takes a very important part in the regulations of restraining competitions. However, the conspirator's cooperation activity has become more and more concealed and it is more difficult for the regulating authority to affirm the restraining competition by the direct evidence of contracts and testimony of witness. So, it is a distinctive feature in proving the restrained competition agreement by circumstance evidence according to information exchange. By demonstrating the circumstance evidence and identification of the agreements, the paper points out the standard which will be used to identify the agreement by circumstance evidence; the burden of proof in identifying the agreement of constraining competition; the influence of the market structure, category and appearance of the information exchange on identifying the agreements and how to use information exchange to identify the agreement.Establishing a satisfactory sanction system for the restrained competition agreement will exclude this kind of agreement effectively, restrain the cooperation activities in the future and give timely relief to the victims. It is a complicated sanction system for the restrained competition agreement. The administrative authorities exclude the cooperation activities by exclusion measures; deprive the violators of the illegal interests by fining system. The inspecting procuraterate find out criminal liability by suing a criminal case for serious violation which breaks the law. The victims who suffer from property or economic loss because of the cooperation activities can recover their loss by suing for compensation. All these activities can punish and prevent the restrained competition agreement to some extent. Through the analysis on the leniency policy of the restraint competition agreement, the thesis indicates that the leniency policy is very important to denounce, reveal the restraint agreement and to regulate it. Through the analysis on the different provision, pointing out how to set up the leniency policy in our anti-monopoly law.Considering the specialty of the restrained competition agreement and the process of the legislation in counter-monopoly in our country, some part of the paper discussed the relevant part of the regulation in the restrained competition agreement and analyzed the relevant stipulations in the draft of Counter-Monopoly Act in our country to make some specific suggestions for the law of the agreement of constraining competition in our country.