Study On Legal Regulations On The Abuse Of Market Dominant Position

Along with the development of China's market economy, competitions are also getting more and more severe. At present, various kinds of the abuse of market dominant position have emerged in China's economy life. Due to the lack of an effective anti-trust regulation, these abusing conducts have seriously hindered the formation of an economic order with the character of free, fair and effective competition; they have already harmed the public interests and the legitimate rights and interests of consumers and will surely affect the healthy development of China's market economy. In particular, after our joining into the WTO, we are facing the challenges and the competitiveness of enterprises in the international market. Therefore, the taking of activities to accelerate anti-monopoly legislations, effectively regulate the abuses of the enterprises from both inside and outside of China and to ensure the good performance of the competition system of the market have become imperative.Based on the research of the basic issues on the foundation of the dominant market position, and the analysis of the nature, elements, manifestations and consequences of the harm to competition of the abuse of market dominance, the author has stated the status of foreign regulations to the anti-trust abuses. The author also lays out some legislative propositions about the regulation of these abuses in China's future anti-monopoly legislations in the light of the deficiencies in China's existing legislations.The first chapter is named "Dominant Market Position and Its Recognition", and it consists of three parts. The first part refers to definitions of market dominance in some representative countries, and the author finally summed up the general definition of market dominance and the patterns of dominant market position. In the second part, the author explores the recognizing standards of the dominant market position, and has also laid out a recognizing standard, which should be called "the paying of more attention to market share with the taking into account of relevant factors". Thirdly, the author discusses the division of the relevant market. In order to identify whether or not an enterprise has the dominant market position, we should divide the relevant market, that is, to define the field in which the enterprise conducts its competition from the aspects of product market, geographic market and the timing market.The second chapter is named "The Abuse of Dominant Market Position", and it consists of four parts. The conceptual analysis of the abuses is firstly done, and the anti-competitive nature of the abuse is stated in detail. Secondly, the author concretely describes the main elements of the abuses: elements of subject, elements of aim, elements of conduct and results. Thirdly, the author analyses the different types of abusive behaviors, and also gives out a detailed analysis of all the harmful consequences of abusive behavior to the competition. The fourth part refers to the jurisprudent and economic foundations of regulations on the abusive behaviors.Chapter 3 is the "Analysis of Foreign Anti-Trust Regulation on the Abusive Behaviors", which is made up of four parts. The first part is about the two recognizing principles on the foreign regulations on the anti-trust abuses—the principle of illegality in itself and the reasonable principle. After analyzing the merits and defects of the two principles, the author gets her conclusion that the "reasonable principle" is the one that fits the tendency of the time. Secondly, the author introduces two regulating institutions about the abuses in foreign countries—Structural Remedy and Conduct Remedy, and concludes that the more ideal way is "the combination of the two institutions with more attention to the conduct remedy". Thirdly, the author gives out some legislative examples about the regulation of the abuses in foreign countries—generalized legislation and enumerated legislation. At last, defenses and legal responsibilities about the abuses in foreign countries are detailed stated.Chapter 4 is named "Analysis on the Regulating Status and Defects of China's Legislation about the Abuse Behaviors", and it consists of three parts. The first part is about some different kinds of abuses in the present economic life. Secondly, the author enumerated some existing legislations about the regulation of the abuses. Thirdly, she gives some details of the current legislative deficiencies in the regulation of the abuses.Chapter 5 is named" Proposition on the Regulation of Abuses in Chinese Anti-Monopoly Law", and it consists two parts. Firstly the author analyzes the necessities and emergencies to make legislations on the anti-monopoly law. Secondly, it has been laid out the concrete legislative propositions on the regulation of the abuses in the anti-monopoly law:①the scientific definition of dominant market position;②the adoption of the "reasonable principle" when defining the abusive behavior;③the adoption of "structure remedy and conduct remedy" in the regulating institutions about the abuses;④the adoption of enumerated legislation when defining the abusive behaviors;⑤Setting up a defense system ;⑥the establishment of a comprehensive legal system.The last part of this dissertation is the conclusion. The author summarizes her researching findings and her own point of views on the subject, in the hope that these findings could do something good to the perfection of our anti-monopoly law system.