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Industry Association Antitrust Restriction Of Competition Regulation

Posted on:2009-05-12Degree:DoctorType:Dissertation
Country:ChinaCandidate:M YeFull Text:PDF
GTID:1116360275966231Subject:Economic Law
Abstract/Summary:PDF Full Text Request
It is not in the recent years that trade association restricts competition in China.It occurs in a more frequent and harmful way in recent years.To deal with the practical things,China promulgated Anti-monopoly Law in 2007,in which trade association and its behavior to restrict competition are specially mentioned.Anyway,for many reasons,the articles in Chinese Anti-monopoly Law on trade association and its acts to restrict competition are very vague and hard to be carried out in practice,which made some confusion and misunderstanding in the practice of Anti-monopoly Law. The contradiction between the practical things on trade association and the omissions in the legislation of Anti-monopoly Law requires objectively that scholars response this issue and make necessary theoretical research on issues such as the association restricting competition and their regulation by Anti-monopoly Law.Whereas,Chinese academic society paid less attention on this issue and made few research.For this reason,this thesis is titled as"Regulation by Anti-monopoly Law on trade association restricting Competition",which aims to make up for the deficiencies of corresponding theories by this research,and hopes to do favor for regulating trade association restricting competition by Anti-monopoly Law.The nature of trade association restricting competition is the exerting of the right of autonomy by trade association.The fact of regulation by Anti-monopoly Law is the restriction of trade association's autonomy right.The strict regulation of Anti-monopoly Law will affect the autonomy of trade association,while loose regulation will affect fair competition.For the above consideration,under the direction of the basic concept of moderate regulation,this thesis centered by the logical main line of autonomy and regulation,in accordance with the thought of"What is the trade association restricting competition-Which trade association restricting competition should be regulated by the Anti-monopoly law - How to identify the illegality of the trade association restricting competition that is in the scope of the regulation of the Anti-monopoly law -Which liability the trade association restricting competition should bear".This thesis absorbed the research fruits of Law Science,Economics and Sociology by applying many research approaches such as empirical research,comparative analysis,historical investigation, and semantic analysis.Based on the above thinking route,the whole thesis consists of four chapters besides Introduction and Conclusion.Chapterâ… tries to explicit the trade association restricting competition to provide support for anti-monopoly law regulating trade association restricting competition. Firstly,this chapter mainly analysis the common sense on trade association.The author evaluates the definition of trade association made by Chinese and foreign scholars and corresponding legislations,and makes a definition of trade association as social organization to be made up of members from the same association with the purpose of mutual benefits and with the basic characteristics of self-discipline, non-government,mutual benefits and neutrality.The author discloses three functions of trade association as service,coordination,and self discipline.These three functions have pro-competitive effects.Secondly,the author arm at specific researching the relationship between the trade association and restricting competition.This researching is carried out from theoretical and empirical aspects by fixed quantity and fixed quality by applying multi-disciplinary knowledge.Theories of Club,game, demand,supply&cost and trade association failure could reason out the subjective motive of trade association restricting competition.The analysis on the building route of trade association and market concentration,member formation and the sameness of products,cost difference,the conference system and the number of factories,the punishment power of trade association and the force to carry out restricting competition resolution reflects that trade association has the preferential conditions to restrict competition.The further reasoning above proves that trade association tends to restrict competition.At the same time,this proposition was proved by the investigations about the abroad and inhome.Then,the author circumscript what is trade association restricting competition.The author conclude the meanings and the characteristics of trade association restricting competition.It is a kind of activity carried out by following the intent to restrict competition made by the trade association in accordance with the procedure in the association's constitution within the scope of its power.It is different from operators restricting competition for the reason of complex bodies,special behavior and more harm to society.The types of trade association's restricting competition includes acts such as the collection and circulation of statistics,standards and authentication,the making and enforcement of self-disciplinary rules,declining trading in a unified way,unified purchase,price intervening,restricting output,restricting customers or market scope,issuing license and reviewing qualifications,membership entrance.Finally,the author explains the nature of trade association restricting competition and its duality.The nature of trade association restricting competition is the exertion of the autonomy of trade association, and the trade association restricting competition bear apparent duality.For one hand, trade association have the rationality of preventing excessive competition,reducing resources waste,and improving the unity competitiveness of the whole trade;on the other hand,it may do harm in the following aspects,damaging free competition mechanism,damaging economic democracy,reducing economic efficiency,harming social public interests,damaging the consumers' interests.Therefore,when the anti-monopoly law regulating trade association restricting competition,it has to coordinate the relationship between the autonomy of trade association and antimonopoly law regulation,which means that regulation should be controlled in a moderate way,not all the trade association restricting competition should be regulated by antimonopoly law,and not all the trade association restricting competition under the regulation of antimonopoly law could be regarded as being against the law.The target of Chapterâ…¡is to determine the scope of trade association restricting competition.Under the direction of the concept of moderate regulation,this chapter first investigates the scope of trade association regulated by antimonopoly law.After comparing and analyzing five doctrines on trade association,the author suggests the doctrine of the broadest sense to be selected to realize the target of Antimonopoly Law and the requirement of moderate regulation.Then,the author applies the method of purposefully extending the explanation and the standard of functional analysis to make special study on non-corporation trade association,agriculture trade association, and occupation trade association which are of great conflicts.The conclusion is that the above trade associations and commercial and industrial trade association all have the function of restricting competition,and that they all should be regulated by Antimonopoly Law.The author further suggests that Chinese Antimonopoly Law should regulate the above trade association by way of listing and summarizing.Second, the author studies the scope of trade association restricting competition regulated by Antimonopoly Law.On the basis of explaining the exceptions of Antimonopoly Law, the author believes that trade association restricting competition in foreign trade,part of agriculture trade association restricting competition,trade association formed by medium and small-sized enterprises restricting competition,and trade association restricting competition with legal authorization should be excluded from the regulation of Antimonopoly Law.After comparative study on antimonopoly law in developed countries and China,the author reaches the conclusion that the scope of trade association restricting competition to be regulated by Chinese Antimonopoly Law is very narrow.It is suggested that Chinese Antimonopoly Law should regulate trade association restricting competition by summarizing,and list the trade association restricting competition to be regulated by Antimonopoly Law,including trade association organizing operators of the trade to carry out monopoly agreement, organizing to carry out the acts of abusing common superior position and abusing the administrative power authorized by administrative department or law.Chapterâ…¢is to determinate the unlawfulness of trade association restricting competition,which is the key to regulate trade association restricting competition. This Chapter first explains the normal determination of the unlawfulness of trade association restricting competition.In practice,the rule of per se and the rule of reason are applied to determine the unlawfulness of trade association restricting competition.It is suggested that such behaviors as direct fixing price,typical collective boycott,horizontal division of the market,direct restrictions on members of the production and sales of conduct that carried out by trade association should be determined to be unlawful in accordance with the rule of per se.For other trade association restricting competition,we should use the rule of reason to determine whether the behavior is unlawful.After considering such three steps as whether the act was to achieve the legitimate purpose,whether the restrictions are minimum means to competition,and the proportion of the positive function to negative function of the behaviors,comprehensive analysis is applied by considering its purpose, consequence and relative market conditions.Then,on the basis of learning from foreign countries,the author specially analyzes how to determine the unlawfulness of three kind of trade association restricting competition which bear apparent duality,is hard to be find and hard to be determined with much theoretical conflicts.Whether standardized acts carried out by trade association being unlawful is to be determined by the purpose,the market influence of the maker,the competitiveness of the commodity and the operators excluded by the standard,the making procedure,and the licensing of the standard.Whether information exchange by the trade association being unlawful is to be determined by the character of the information exchange, relative market environment,the influence affected by the information exchange. Whether licensing membership being against antimonopoly law is determined by the following factors:the purpose of membership,whether relative procedure being followed,the benefits operators gaining from membership.Chapterâ…£studies how to seek legal actions against trade association restricting competition from liability subjects and forms,and offers relative advice.For the reason that trade association restricting competition is the combination of individual and group acts,the author proposes that trade association and individual member are both the subject to bear the liability.To put it straight,if trade association restricting competition is Justin the process of making a decision,the liability should be borne to the trade association mainly and including the members agreed.If the decision made by the trade association is carried out,not only the trade association and members agreed,but also the members to carry out the decision should be liable for this.After determine the liability bodies,in the second part of this chapter,the author explores the specific liability forms.It is discovered that it is necessary to impose administrative,civil and criminal liabilities against trade association restricting competition.As far as the administrative liability on trade association restricting competition,the specific liability includes fine,cancel registration,order to make a rectification,administrative punishment;as far as the members concerned,it includes fine,cancel registration,order to make a rectification,administrative punishment. Further improvement should be made by Chinese Antimonopoly Law from make detailed rules of for mercy and seizing income from unlawful acts.Trade association restricting competition is a tort liability by following the fault understood principle with two liability forms of compensation for injury,and excluding damage.It is suggested that trade association and members of it together as the common bodies to bear joint and several liability,and punitive damages is to be added for members of trade association.For trade association restricting competition as a crime,it is to be dealt with by learning from unit crime.Double punishment is to be carried out,the trade association and members to vote for this are both punished.
Keywords/Search Tags:Trade Association, Restrict Competition, Antimonopoly Law, Regulation
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