On Anti-trust Law Regulation Concerning The Boycott Initiated By Trade Association In China

Trade association is a social media organization which is composed of competing enterprises of same industry. In order to achieve the healthy development of the overall industry, association provides information services and coordinates individual members according to the law and the self-regulatory rules. The trade association in essentially is autonomous. The autonomy of trade association may realize information sharing, coordinate collective action of members and help trade association become an effective substitute for state failure. However, the autonomous of trade association also has many negative functions, which will trigger a series of social risk, thus there should be a limit to associational autonomy. This is the theoretical basis for this paper.As one of non-legal penalty powers of association, boycott is the important constituent of associational autonomy. Through boycott, trade association can punish behaviors such as "free-ride" which undermine the collective actions, so avoid the entire industrial loss resulting from the opportunists who only pursue short-term interests. However, the trade association's boycott also has various negative functions, including the restrictions on competition. Based on this, this paper is fully affirmed the positive functions of association's collective actions, and researches on various problems about association's boycott from the perspective of the antitrust law.The main text of this paper is divided into four main parts, concrete structure as follows:Chapter 1 defines the scope of the boycott initiated by trade associations, and summarize their features. Specifically, under the conditions of association, boycott has two characteristics: First, it diversifies means of resistance, enhances the effectiveness, also further intensifies the negative influence to competition; Second, boycott plays an important role in the realization of economic autonomy. So there might be authority from legal or have reasons for the trade management. To further study the needs of their classification is necessary. By the standard of the relationship between the boycotter and the target enterprise, boycotts initiated by association can be divided into two categories: boycott against members of the association and boycott against non-members of the association. For the latter, it could be classified into two parts, horizontal boycott and vertical boycott.Chapter 2 analyzes the positive and negative effects of the boycott initiated by association. On the one hand, boycott may be due to the prevention of the "free-rider", or to achieve social and public interests or defense the abuse of a dominant position in market, so it is reasonable; on the other hand, through exclusion of target enterprises, boycotts undermine the normal order of market competition, and jeopardize the legitimate interests of consumers, so there is a need to regulate and guide these behaviors by antitrust law.Chapter 3 introduces and unscrambles the relevant experience about regulations on boycott initiated by associations by antitrust law in the United States and Japan.Courts should classify boycotts according to the horizontal or vertical nature of the restraint in U.S..A per se rule is appropriate for horizontal boycotts, but not for vertical ones. If boycott is based on non-commercial purposes, because it reflects the right to freedom of expression directly from the basic provisions of the Constitution, the antitrust law is not the best field of regulation, or it helps to promote the realization of social and public interests, so it often gets antitrust immunity.By Japan's antitrust law, boycott initiated by trade associations is not per se illegal. If there is a good reason or restriction of competition is not serious, it would be able to get antitrust exemption.Chapter 4 is the core of this paper. In this part, it is first necessary to examine our current legal regulation on boycott initiated by trade associations. There are two problems can be found: First, the integrity and system is inadequate; second, for the lack of relevant laws, the effectiveness of the legal regulations can hardly be guaranteed.The approaches of U.S. and Japan offer an important train of thoughts for regulations on boycotts initiated by trade associations in our country. On the one hand, economic boycotts directed at members should be treated under the rule of reason. On the other hand, economic boycotts directed at non-members should be classified into two parts, horizontal boycotts and vertical ones, and these two kinds of activities should be applied to different standards.Based on the above ideas, these following categories of boycotts should be given antitrust immunity: Non-commercial boycott; The boycott against "free-rider"; The boycott against enterprise which damages the fundamental interests of associations; The boycott withstanding abuse of market dominant position.This paper tries to innovate in the following two aspects:First, this paper quotes many classical cases in the history of antitrust in U.S., some of which appear primarily in the relevant research in our state. These information can be seen as a bit contribution to the related research.Second, this paper is founded on the academic achievements of our predecessors, but it does not stick to this, trying hard to make progress in a number of key perspectives.