The New Economy And The Development Of American Antimonopoly Law

The 20th century 40,50 age starts has accomplished one batch of emerging industries in US's third industrial revolution, this mainly includes the micro electron industry, the communication industry and the network industry. In these emerging industries, the economical growth way and enterprise's competition rule and the former traditional industry like automobile, the chemical industry, the machinery, the petroleum and so on differ from, these emerging industries are called the new economy.The new economy and the traditional economy compare the characteristic is:First, enterprise's market share and the scale no longer are the main market barriers. But because innovation speed quickening, should mainly appraise the innovation barrier must to enter the barrier;Second, the price discriminates against into the habit;Third, the enterprise surface Linkao fixed cost, the low marginal cost cost structure, the market has the tendency which the regeneration effect and winning passes eats.Fourth, the demand side economies of scale have caused outside the network the nature and high total shift cost.Above change explanation produces in the traditional economy American antimonopoly law can be suitable inevitably in the new economical industry encounters the difficulty. How are the choices, no longer are suitable, overthrow come again, carries on the development in the original foundation, different people has different views, different people has different views.In counter-monopoly economic domain, before the popular Harvard school of thought industrial organization theory withdraws from the historical arena gradually, but the Chicago school of thought theory becomes the mainstream gradually.In the counter-monopoly judicature practice, the Microsoft ridge settled a lawsuit the centralism to manifest on the one hand this the conflict and the change and the development.First, makes a tie-in sale about Microsoft Corporation the behavior, the court finally refuses to Microsoft Corporation to make a tie-in sale the behavior to make the illegal judgment, but is suitable reasonable principle tactful confirmation its rationality.Next, in new economical industry, even if has the very high market share, but if does not have the corresponding innovation barrier protection, also cannot recognize has the monopoly strength. Even if sells in the market in the knot to have the monopoly strength, also cannot certainly think also has the monopoly strength in the tie-in sale market, but also must look at the tie-in sale market specifically the competition condition.Third, integrates about Microsoft Corporation the IE browser the Windows operating system whether is in the colligation judgment standard, the American Court tactful acknowledgment technology outstanding person standard, and determined Microsoft's behavior not illegally.Fourth, the Microsoft ridge settled a lawsuit the first trial court to make the dismemberment Microsoft Corporation's decision based on the structuralism principle, but to second trials although still determined Microsoft Corporation to monopolize the operating system market, but has not received the dismemberment actually the punishment, only was requests Microsoft Corporation to make certain behavior, did not have to limit the competition.Through above analysis, may see in under the new economical influence below, American Anti-trust laws will be able to have some trends.First, consumer's expense free or said the option replaced consumer's price benefit to become the antimonopoly law the main protection goal.Next, is further fuzzy about the monopoly strength judgment standard, and assumes the multiplex development the tendency.Finally, the customer requests the test method principle the attenuation, the technical outstanding person standard appearance.Regardless of is the counter-monopoly principle of economics change, the counter-monopoly legislation development, as well as the counter-monopoly judicial practice, all these explained the American antimonopoly law still had the suitable leeway under the new economy, but non-useless, likely Posner said: “Anti-trust laws are suitable for the new economy have the question truly, but that is not the principle of legality aspect question. The Anti-trust laws law principle enough is flexible, also is loyal to in the economical practically the rationality, sufficiently deals with the competitive question which in the new economy appears. The true question lies in the system stratification plane: Implementing agency and court not enough technology method, moreover moves insufficiently is also rapid, is unable effectively to deal with the change extremely quick exceptionally complex branches of the economy. This is the question which extremely difficult to solve.”At the same time, the antimonopoly law does not have to overthrow comes again, but is needs to carry on some changes and the development in the original rule foundation, adapts the new economic situation and the new economical industrial need.Although the new economy also only appears in American one, but other various countries also all appeared the new economical clue including our country. Although our country not yet formulates the antimonopoly law law, but the counter-monopoly practice and the counter-monopoly fundamental research all has carried on many years, also the antimonopoly law law formulation has also included the legislation plan, believed within several years can appear. Therefore, the author hoped through this article, the American antimonopoly law transformation carries on the preliminary discussion to the new economy under, legislates take the time as our country counter-monopoly and carries out provides the model.