Research On Antitrust Regulation Path In Franchise Field

Franchise,as a business marketing model with strong vitality,has developed rapidly around the world since it was born in the United States in 1863.It has created many multinational corporations and has become an important business management model that flourishes in the 21 st century.It is even called "the only choice for largescale,low-cost,smart business expansion." Since the introduction of the franchise model in China in the 1980 s,it has achieved remarkable results in the process of market economy development and has flourished.The current franchise model in China covers many industries such as retail,catering,residential services,intermediary services,education and training,and accommodation.The types of franchise business resources involved are also very rich,including registered trademarks,corporate logos,business models,patents Technology,know-how,trade secrets,and more.Under the franchise business model,in order to maximize the efficiency of operating resources and expand the scale of the franchise system,granting the right to implement its operating resources to the licensee through a special license is a manifestation of the franchiser’s autonomy in management.It is also the embodiment of the principle of freedom of contract in franchising,and based on the pursuit of franchising production and sales standardization and system uniformity,it is reasonable to set certain restrictive conditions for the licensee.However,the rationality of behavior often has certain boundaries.There is no absolute freedom in the world,especially for the operators in the market.As the most important market player,the operator takes the maximization of benefits as the fundamental goal in market transactions However,while pursuing economic benefits,operators also need to abide by the general rules of market transactions and the requirements of competition order,and must not damage the market’s free and fair competition order because of their own private interests.Due to the natural vertical inequality between the franchisor and the licensee under the franchise model,while the franchise model is booming,it has also appeared that the franchisor unreasonably restricts the licensee’s business activities through its advantageous position,making the franchise The destruction of the competition order in the relevant market where the operating system is located.The antitrust law is known as the "Economic Constitution" and is the best choice for restoring and maintaining a free and fair competition order.In the face of restrictive competition in the special field of franchising,how the antitrust law is involved and how it is directly involved Limits on the development of franchise business models and the guarantee of competition order in the franchise area.Antitrust regulations on restricting competition in the franchise field should also take into account both the rationality of the franchise model and the legitimacy of competition order maintenance.This article intends to clarify the operating mechanism of the franchise business model on the basis of fully understanding the basic theory of the franchise business model,combining the current market competition status and existing regulatory experience in the franchise field,and combining specific cases to consider the franchise restrictions in a comprehensive manner.On the basis of conflicts of interest between parties involved in the competition,a regulatory approach to restrict competition in the franchise field is established from a prevention and restriction perspective in a balanced manner,with a view to providing practical solutions for the regulation of antitrust laws in the franchise field.First of all,it must be made clear that franchising is a unified marketing system for goods,services or technologies.This system can achieve the market investment goals of efficient capital absorption and inefficient expansion.From a legal point of view,franchising is presented as a continuous,paid contract between the franchisor and the licensee for the authorization of operating resources,such as trademarks,trade names,proprietary technologies,and trade secrets,with intellectual property resources at the core.The conclusion of the business model is based on the contract and is accompanied by the conditional permission of the franchise right,which is an intangible collection of property rights with intellectual property rights.It can be seen from this that,as a limited authorization of private rights,franchise itself has the characteristics of uniformity,standardization and standardization.There is inherent rationality in the restrictive competition under this model.The franchise model stems from the regional economic transfer requirements and the deepening of the division of labor of the enterprise.It is gradually developed for the purpose of achieving low-cost scale effects and sharing business risks.It shows a continuous increase in vertical integration,scale effects and brands in the real market.Development of a state of competition with many contradictions and low quality of competition.The existence and rapid promotion of the franchise model has a double competitive effect for franchisees,licensees and socioeconomic development.The positive promotion effect is the fundamental driving force for the rationality of the franchise model and its vigorous development.The negative inhibitory effect of the business model on competition has become the practical basis for proper regulation.With the development of the franchise business model in the social economy,it has achieved great success in the world and brought profound changes to industries such as production,distribution,and retail.Faced with the multiple legal relationships that exist in franchising,many countries or regions have tried to regulate it from the perspective of contract law,company law,intellectual property law,competition law and other different departmental laws.China has basically formed special legislation and other laws.Rule system combining laws and regulations.Through the investigation of special structures such as the inequality of franchise legal relationship subjects and the intellectual property rights of franchise rights,the traditional private law protection path is not enough to solve the competition derogation effect that may be generated by restricting competition in the franchise field.The regulation of restricting competition in the franchise field must not only respect the inherent exclusivity of the franchise business model,but also take into account the relevant market free and fair competition order requirements in the franchise field,which is a combination of reasonable guidance and strict restrictions.Therefore,in order to restrict competition in the field of franchising,the choice of anti-monopoly regulation path is necessary and practical,but the practical dilemma of anti-monopoly regulation path provides the direction for the construction of the regulation path and the design of specific rules.The operation of the franchise involves the relationship between multiple entities,including both the franchise and the licensee based on the licensing of operating resources based on the franchise agreement and the core contractual relationship,and also includes the franchiser through vertical restrictions The restrictive relationship with relevant third parties also includes the indirect influence relationship between the franchiser and the end consumer and the direct transaction relationship between the licensee and the end consumer in the actual distribution process.The relationship between these different subjects constitutes a complex relationship network in the franchise system,and the interests of each subject also have their own differences.In the case of franchise relationship subjects-that is,the actual status of the franchiser and the licensee is not equal,The conflicts of interest in the franchise-led franchise system during the operation process are also inevitable.The existence of these conflicts of interest is the root of the construction of anti-monopoly laws and regulations in the franchise field,and it is also the anti-competitive effect of restricting competition in the franchise.The fundamental reason,the balance of these conflicts of interest is a major problem that must be solved in the construction of antitrust regulations in the franchise field.It is also the basis for the antitrust compliance guidance and specific behavior analysis in the franchise field.Due to the consistency of the operating system in the franchise field,in practice,the probability and success rate of the franchiser to achieve a monopoly state or implement monopoly behavior through vertical restraint relations have also greatly increased.In the special field of franchising,from the perspective of achieving regulation It can be seen that the franchise antitrust compliance mechanism can achieve the balance of the interests of all parties under the premise of ensuring the effective development of the franchise model.From a macro perspective,it can help franchise enterprises to complete compliance self-examination and promote the smooth implementation of antitrust law enforcement.Improving the efficiency of antimonopoly law enforcement in the field of franchising can ensure the healthy development of franchising from a micro perspective,and has become an indispensable part of the construction of anti-monopoly regulatory paths for franchising.The construction of the franchise antitrust compliance mechanism needs to be guided by the value pursuit of effectiveness,based on the company’s own characteristics and its market position,combined with the company’s size,business status,number and level of employees,and other specific circumstances.Compliance training and compliance education,a comprehensive reporting and reporting system,compliance monitoring mechanism,and other aspects are regulated and constructed,and a specific monopoly behavior identification mechanism is established in compliance construction to help operators in the franchise system With the help of the compliance mechanism,the prevention before the occurrence of the monopoly,the timely discovery when the monopoly takes place,and the remedy after the anti-monopoly investigation by the law enforcement agency and even after the monopoly takes place.It is true that the construction of a compliance mechanism does not completely prevent the occurrence of restrictive competition in the franchise field.When a possible restrictive competition occurs,a specific illegality determination scheme needs to be set up from the perspective of post-regulation to determine whether the behavior requires antitrust Prohibited by law.Illegal judgment schemes that restrict competition in the franchise field are also conducted on the premise of clear conflicts of interest.Under the guidance of the basic positioning of competition policy and the idea of modest law enforcement,reasonable principles are used in conjunction with relevant competition factors to make judgments.At the same time,it should not be overlooked that the process of judging the illegality of the conduct by the reasonable principle of the antitrust law implies an exemption defense system based on the balance of interests,which has also become an indispensable part of the antitrust regulation system in the franchise field.In general,the research on the antitrust regulatory path of franchising is to build a system of prior prevention and ex-post control for restricting competition in the franchise field on the basis of respecting the particularity and intellectual property attributes of the franchise within the franchise model.That is,on the basis of examining the theoretical basis and practical development of the franchise model,based on reasonable principles,and on the basis of the balance of conflicts of interest,a relatively scientific anti-monopoly regulatory path for franchising will be established.