Recognition Of Misuse Of Market Dominant Position In Anti-Trust Law Context

Anti-monopoly law is regularly referred to as the"constitution of economy". It is composed of three pillars, namely, prohibition of conspiracy of enterprises, supervision of merger of enterprises, and prohibition of misuse of market dominant position. Prohibition of misuse of market dominant position is one of the most important fields in anti-monopoly law, and the precondition to prohibit misuse of market dominant position is to how to measure such misuse of market dominant position. This essay explores the similarities and differences among the laws and judicial practices in the world and gives its suggestion on the promulgation of China Anti-monopoly Law, especially in the measurement of misuse of market power. The essay comprises four chapters as follows.The first chapter is am overview of misuse of market dominant position. In this chapter, the assay firstly presents, through comparative study, the definition of misuse of market dominant position, that is"Misuse of market dominant position is, through its current market dominant power, to conduct anti-competition practice in order to maintain or strengthen such power", and the fours factors of misuse of market dominant position. Secondly, the essay analyzes the history and goal of measurement of misuse of market dominant position.The second chapter is divided by the legislation of Europe, American, OECD and UNCTA, and each section is studied from three aspects, i.e., relevant market, market dominance position and misuse. The chapter is ended by comparison, from which we learn that relevant market comprises product market and geographical market; market dominance position is the ability to control market by certain advantages; and the two types of legislation regarding misuse.The third chapter studies the misuse of market dominant position from the judicial practices. Firstly, the assay explores the measurement of relevant market through typical cases, and concludes that seasonal market is of importance. Secondly, the essay analyzes the measurement of market dominant power and concludes with the approach:"market share is the most important factor, and other factors reflecting the power of enterprises shall be considered". Last but not the least, the essay explores the typical modes of misuse of market dominant position.The fourth chapter explores the current laws and regulations on prohibition of misuse of market dominant position and gives certain suggestions on the China Anti-monopoly Law. Firstly, the essay introduces the current legislation and points out the defects. Secondly, the essay gives suggestion on the promulgation of China Anti-monopoly Law, including but limited to, the definition of relevant market shall be clarified and division of relevant market shall be conducted; the definition of market dominant position shall be clearly settled, and market share approach shall be adopted; market dominant position shall not be prohibited and misuse of such power shall be prohibited; and non-exclusive legislation approach shall be adopted in China, to guarantee the basic principle and the flexibility at the same time.