Studies On The Exemption From Application Of Anti-monopoly Law System

More than one century has lapsed since the promulgation of John Sherman'sAntitrust Act in 1890, but the debate thereof has also never intermitted. AlthoughAnti-monopoly Law of PRC has not been enacted, however, strengthening the studies onthe exemption from application of anti-monopoly law system will enhance ourunderstanding of the character and the function of the law, at the same time give us thedemonstration on how to draft China's counterpart. Learning from the foreign law,especially after China's entering into WTO, will direct our socialistic market economysystem to develop healthfully. In the first part-- basic theoretic analysis part, starting from the analysis of thegeneral theory of the exemption from application of law, the author provides the basis ofthe application of the theory in the monopolistic field. Then, the author defines LegalMonopoly comparing with Illegal Monopoly. From the relationships between monopolyand competition , the author advises to establish the workable-competition marketstructure ;thereafter, the author elaborates the double-edged character of monopoly, that is,passive and positive functions to economy, especially the latter ——the relationsbetween monopoly and the realization of economies of scale, the fitness of specialeconomic policy and monopoly. This illustrates the changes, from the angle of rights andinterest, from individual-rights-oriented system to social-rights-and-interest-orientedsystem ,the author thinks. In the second part, the author talks about several items. First, the author expoundsthe character from the angle of the goal thereof, conclude its application conditions andexplain the legal consequences, classify it in two different ways. The system has threevalues such as the whole social benefits, fairness and efficiency, morality. We will find thesystem has the following characteristics, comparing the advanced system of Japan,the 4USA,Germany,EU, such as various forms,universal contents ,changeable substances,relative effects . Then, the author compares two rules: per se rules and rule of reason, andestablish the latter rule as the standard rule. In the third part, the author sets forth the embodiment of the above-mentioned theory,that is the object. The author discusses the following six objects , and explain their latestchanges under the situations of the globalization of the world economy and theknowledge economy, including special callings such as natural monopoly, banking andinsurance ,agriculture forestry and fishing, sports,special organization and its memberssuch as labor union, consumers association ,labors , free professions, specialists, guild ,non-specific organization such as cartel mainly,legal use of IP,foreign trade,statemonopoly. In the last part, the author deal with the relations between the basic rules of WTOand the competition rules firstly, and conclude the promotion and the maintenance of thefreely open trade system are the same goal. WTO rules itself mention three competitionpolicy, including uniform international market, nondiscriminatory competent subject andself-control of the states. As far as the draft of Monopoly Law of PRC, which waspublished on Feb.26, 2002, is concerned , the author evaluates the relative clauses andregulations. In the end, the author gives several pieces of advice on the building ofChina's exemption from the application of anti-monopoly law system.