A Study On Regulation Of Anti-competitive Practice In Standardization

In the era of highly development of science and technology, technology presents its characteristic of diversity, complexity and versatility, and people have a increasing demand for Interconnection to be realized. Standardization, at this very moment , meet this demand, which is the inevitable consequence of the development of standardization, i.e. social productivity. Through technology optimization, standardization improves production efficiency; through simplifying product categories, it enlarges the economical efficiency of scale; through reliable quality expectations, it lessens trade costs; through compatibility, it widens net effectiveness. Standardization has become the requirement of further development of productivity. However, as the result of"standardization", standard, not only be the tool of increasing efficiency, but also the means of interests'distribution. Standardization can be viewed as entry barriers so as to maintain monopoly position, achieve super profit; Standardization can be viewed as discriminative measures so as to have market division, seize consumer surplus; Standardization can be considered as source of first-move advantages to maintain its technical leadership. As the tool of competition, standard, has gradually been the focus for its restrictive influence on market competition. Anti-competitive practice in standardization in foreign countries has been relatively mature, and already has large number of cases; And in China, we are still poor of doing researches in competition and restrict competition with standardization.This paper proceeds the exploratory research upon how to regulate anti-competitive practice in standardization which is less carried out in China, by referring the mature experience of developed countries, combined with status quo of the research of anti-competitive practice in standardization in China, puts forward that by means of constructing the judicial system of anti-monopoly to regulate anti-competitive practice in standardization. This paper, except for introduction and conclusion, comprises five parts, in which develops in the way of raising questions, analyzing questions and solving questions.Part one: general analysis on relationship between standardization and market competition. This part confronts readers a vivid cognition about standardization through related definition of standardization, and analyses the positive and negative affect of standardization on market competition. Meanwhile, this paper gives a special introduction about the influence from the combination of standardization and intellectual property on market competition, especially the negative influence on market competition, which lays the background for the following.Part two: performance of anti-competitive practice in standardization. This part defines the concept of anti-competitive practice in standardization, and puts forward that the anti-competition in this paper is of anti-monopoly, and introduces the normality and modality of anti-competitive practice in standardization.Part three: the analysis of the tough problems on regulating the anti-competitive practice in standardization. Due to standard monopoly itself is a quite complex problem, and it is not easy to judge it by law. Therefore in this part I analyze the basic principles by judging the anti-competitive practice in standardization through Anti-monopoly law, and put forward the theory that inspection shall be made following the rational principle. Since standardization is always with intellectual property, it is always a challenge to define the related markets in judging Anti-monopoly law, and no consensus has been achieved, I discuss how to identify related markets in standardization in this part. Consequently, I state the phenomena of refusal of acceptance which is frequently seen in standardization, and two chief principles: principle of crucial implementation and principle of FRAND.Part four: related experience of anti-competitive practice in standardization of foreign countries. This paper achieves a conclusion on how America, Japan and EU regulate the anti-competitive practice in standardization, which will provides experience for China's system construction.Part five: the status quo of anti-competitive practice in standardization in China and the improvement of related system. This part brings out that China should establish a specific legal system through analyzing anti-competitive practice in standardization in China so as to regulate legislation and the status quo of justice, in which including pre-prevention system and inspection system of afterwards anti-monopoly law.