Joint Actions On Anti-monopoly Law Theory In The Parent And Subsidiary Companies For The Main Eligibility Ascertain,

This essay is divided into six parts, the main content which has been discussed by each chapter is listed as followed: The first chapter is just to introduce the problem that the parent corporation and its subsidiary are whether qualified subjects or not in the view of the theory of conspiracy. At the beginning, this essay discusses the general theory of conspiracy prescribed by the main countries. Then the four elements of concerted activities are analysed, especially the subject one. Secondly, according to the main articles about the parent corporation and its subsidiary, the features of them are demonstrated. At last, at the base of the discussion of the inter-relationship and intra-relationship from the competitive view, the problem that the parent corporation and its subsidiary should be the qualified subject or not in the view of the theory of conspiracy emerges. The second chapter is just to show the attitudes of American courts to this question. The essay classified the attitudes into three main periods marked by the famous case of Copperweld decided by the American Supreme Court in 1984. The first period is the ex-Copperweld tradition, the second one the revolution of Copperweld and the last one post-Copperweld expansion. In the first period, four relative cases are introduced and discussed. When it comes to the case of Copperweld, the specific situation are described in detail and the attentions are mostly paid to the opinions of judges that the parent corporation and its wholly owned subsidiary are one economic entity which revised the intra-enterprise conspiracy doctrine. After Copperweld case, the lower courts expanded Copperweld doctrine to the situation of a parent corporation and its partially owned subsidiary which caused some criticism and suspicion. At the end of this chapter, the responses to the similar question of some other countries, districts and associations are briefly reviewed. The third chapter is just to re-consider the theory of conspiracy at length. Owning to the Sherman Antitrust Act is the origin of other countries' antitrust laws, the discussion and analysis of this problem on the Sherman Act base is meaningful and constructive to our country. The different treatment to unilateral and bilateral restrictive conduct which is regulated by the section one and section two of Sherman Act respectively causes the actual effect that Sherman Act puts a stricter prohibition on the concerted activity than the unilateral one from the view of onus probandi and the required elements. Then there is a gap between the section one and section two, that a unilateral conduct that hasn't reached to the level of attempted monopolization or actual monopolization is immune by the Sherman Act. To cover this gap, several measures are taken such as the application of the intra-enterprise conspiracy doctrine, the article of 203A of Oklahoma State antitrust law and the Cartwright Act of California State. After the analyses and comments of these remedy methods, the essay argues that the gap of Sherman Act is justified and reasonable that serves to the aim of antitrust law to preserve, protect and encourage competition. The fourth chapter makes comments on the rationality and criteria of the expansion of Copperweld doctrine to a parent corporation and its partially owned subsidiary. Firstly, the essay points out that a parent corporation and its partially owned subsidiary also can be viewed as one economic entity under some situations just as the parent corporation and its wholly owned subsidiary. Secondly, the criteria of subject judgment rule of antitrust law are quite different to the corporate law which concerns the adequate capitalization and right organs. However, the antitrust law focuses on the actual competition in the real economy. Under this view, when a parent corporation actually controls its partially owned subsidiary, there is no competition between them. The most important thing is that the concept of control in the antitrust law sense is actual and real control, which distinguishes itself fr...