Antimonopoly Law Illegal Confirmation Principle

The first antimonopoly law──1890 year "the Sherman Law" has promulgated since the world, the antimonopoly law had already experienced hundred remaining years of life courses, is in the lofty legal status in the market economy, is the marketing country basic legal regime, to the standard market behavior, maintains the competition order to have the vital role. Therefore has the pivotal status in the Western developed country antimonopoly law, is also called"the economical constitution","Free enterprise's big charter","the economic rules and regulations core"and so on."how does any law's potency rely on explains and the execution", a legal norm from the entity says, regardless of perfect how, if does not have the standard law enforcement behavior, judicial process fair, will become the ornaments, only then the dependence judicial officials' judicial activity, can realize the legislative spirit and the legal value. Presently, the whole world had more than 100 countries to promulgate and to implement the antimonopoly law, looking over now various countries counter-ridge law, no matter is the US "the Sherman Law", Germany "Opposition to restriction Competition Law", Japan "Forbids To monopolize Law", European Union's competition law, our country "Antimonopoly law", although various countries' economy, politics and the culture have the difference, causes various countries to send aspects and so on monopoly method legislative pattern, rules and regulations object, implementing agency and implementation effect has the big difference, but establishes the explicit antimonopoly law the illegal confirmation principle, the safeguard antimonopoly law's effective implementation, is actually each national development market economy common path.Hundred years after the theory of institutional development and judicial practice of view, the monopolistic behavior of identified needs related to the per se rule and the rule of reason, these two principles together, constitute a recognized principle of antitrust law. They are in the United States antitrust law practice formed the basis for determining whether monopoly and monopolistic practices the principles of law, after countries adopted anti-monopoly law. However, the applicable principles in specific countries have different patterns, how to learn from the experiences of other countries to establish the purpose of antitrust law in line with our principles is worthy of our recognition to further analysis and study. Per se rule and the rule of reason will have its own shortcomings and deficiencies, among them relative, complementary, and can not replace each other as the only recognized principles of antitrust law. Per se rule is simple, reasonable principles of justice, the existence of two principles are reasonable. States antitrust law in the modern practice, the per se rule rather narrow scope, generally limited to a fixed price, group boycotts, restrictions on production and horizontal division of cartel agreements in the market. Surface is a reasonable principle applies to a wide range restrictions are not per se reasonable basis for the principle of competition cases are confirmed. Reasonable determination of the principles is beneficial anti-monopoly law to better adapt to the complex economic situation, the law enforcement machinery to prevent normal economic activity may be the negative impact."The People's Republic of China anti-monopoly law" and "The People's Republic of China against Unfair Competition Law," "The People's Republic of China Price Law" and together with the relevant provisions of the law, formed a relatively complete system of antitrust law system. For now, our anti-monopoly law enforcement in the judicial process, basically to apply per se rule-based, in theory, recognized the principle of reasonableness, and supplemented by a reasonable principle. However, along with the rapid development of socialist market economy, "monopoly" and "anti-monopoly" of our society in general has become a hot issue. In recent years, in addition to industry monopoly and administrative monopoly to be getting worse despite repeated bans and other economic monopolies have begun to occupy a certain position, foreign operators for the Chinese market to transnational monopoly began to appear. A variety of business strategy and organization after another, most of them are the consequences of monopoly and efficiency grounds exist, therefore the complex monopoly for the identification and treatment will need to apply the principle of reasonable conduct. While the economic globalization, the intensification of competition in domestic and foreign companies, call for China's future antitrust enforcement necessary judicial and administrative cost-effectiveness is more important legislative goals, which requires the use of rational principles to deal with antitrust cases. From China's "anti-monopoly law," Article 1 of the content can be seen, our task of anti-trust law is "prevention and suppression of monopolistic behavior, protection of fair market competition, improve economic efficiency, protect consumer interests and social public interests, promote the healthy development of socialist market economy. " This requires us to use the principle of reasonableness, China should eventually establish a per se rule and the rule of reason antitrust coexistence of both the principles of law recognized.Our country when consummates the counter-ridge law illegal confirmation principle, on the one hand must profit from the international experience positively, on the other hand must consider fully our country economy, political, the cultural background, the construction suits our country national condition the antimonopoly law illegal confirmation principle. This article is divided four parts, take the itself illegal principle and the reasonable principle's production and the historical development as the foundation, makes further concrete analysis to these two principles, the analysis overseas is suitable the effect which these two principle implementation produces, which then summarizes to experience is worth our country using for reference, and will point out our country in the future the antimonopoly law illegal confirmation principle trend of development.The first part, introduced in the antimonopoly law illegal confirmation principle the itself illegal principle and the reasonable principle's origin, summarizes the elaboration their development condition, has analyzed between the itself illegal principle and the reasonable principle relations emphatically, pointed out that the rule which by the reasonable analysis the itself illegal principle and the reasonable principle are obtains the result which fix down, is the reasonable analysis method product, they have the relativity, the complementarily, cannot replace opposite party to become the only antimonopoly law illegal confirmation principle. The second part, introduced specifically the analysis antimonopoly law itself illegal principle implication, the characteristic as well as the itself illegal principle which thought regarding the academic circle are suitable generally in the price are fixed, cases and so on boycott, crosswise market segmentation, tie-in sales agreement, resale price maintenance carry on the analysis, and pointed out that the itself illegal principle the flaw and analyzes its trend of development. The third part, introduced specifically the analysis antimonopoly law reasonableprinciple implication, pointed out the reasonable principle the essence is one analysis method, is containing one kind of emphasis the analysis idea which carries on between each kind of factor is balanced and makes judges finally. Determine the reasonableness of three, namely: whether the cause substantial harm to competition; whether there is justification; whether there is reasonable necessity. Summarize the principle of a reasonable application of the process in specific problems and trends.The fourth part, discussion overseas antimonopoly law illegal confirmation principle, concrete study case-law country illegal confirmation principle evolution and written law country to illegal confirmation principle breakthrough.The fifth part, the antimonopoly law illegal confirmation principle which favors now from our country obtains, to reconsider our country existing this kind of pattern insufficiency, in the preamble research analysis's foundation, profits from other national the experience, proposed that conforms to our country national condition antimonopoly law illegal confirmation principle.