The Constitutional Basis Of Antitrust Legal Regime Of International Trade Of Technology

The antitrust legal regime of international trade of technology is one part of Chinese antitrust legal system. Antitrust legal regime should have its proper constitutional basis as other legal system do. Based on the research already done on the antitrust law by Chinese legal scholars, promotion of economic efficiency and development of market economy, are constitutional basis for anti-monopoly law. However, the anti-competition activities in international trade of technology have already seriously harmed the basic liberty and right protected by our constitution. To only grant economic object as its constitutional basis will not be sufficient to help establish and enforce the antitrust legal system in international trade of technology. Therefore, we should conform that protecting the basic liberty and right of citizen regulated in constitution is also the constitutional basis of antitrust legal system in international trade of technology.The constitution is the fundamental legal basis to protect the basic liberty and right of citizen. Human beings have been pursuing liberty since ancient history. But it was until the emergence of capitalism that the pursuing of liberty and right of citizen is expressly protected by legal system. Our constitution is in the category of socialism constitution, where the protection of basic liberty and right of citizen is a primal function of our constitution. Specific legal system that deals with basic liberty and right of citizen should play more roles in this aspect. The antitrust legal system should also embody its function through the protection of basic liberty and right of citizen. In the international trade of technology, Chinese citizen and enterprise receive the technology mainly through buying or being granted license of foreign technology. So they often at a disadvantage situation and are more likely to be harm by restrictive behaviors. We have adopted various kinds of legislative and judicial methods to prevent the harm of these behaviors, but more things should be done. It is widely accepted that the antitrust legal system in international trade of technology belongs to the law governing the market economy, so it must embody its value through enhancing the economic efficiency and developing the socialist market economy. It can be reasonably concluded for these theories that the constitutional basis of the legal regime should be those of economic values. However, the monopoly behaviors in technology market are complicated, and we can hardly regulate the competition condition of all the technology markets to what is ideal in the economic theories. To propel the legislation of this legal system, we cannot persuade the law-makers and the public to accept the only economy goals of this law, especially when the law influences the basic liberty and rights of citizens.Many kinds of monopoly behaviors in international trade violate the liberty of expression, the liberty of scientific and technological research and development, the liberty of work and the liberty of equality. Our constitution establishes these liberties by reference to the legal practice of hundreds of years of foreign countries and the practice of making, amending and enforcing the constitution of our country from the establishment of P.R. China, as well as considering the characteristics of tradition and legal culture of China. Our constitution owns primal function to protect those basic liberties. We should not ignore the value of protecting the basic liberty and right of citizen when we enforce the antitrust legal system in international trade of technology. If we cannot carry out this value, we will not effectively propel the legislative activities, as well as the effective enforcement of that legal regime.