Regulation Restrict Competition Agreement

This thesis explores the basic issues of the Agreement of Limitation on Competition (ALC), including its concept, components and counter-competition, explains the two primary principles of ALC: Per Se Rule and Rule of reason, and discusses the issue of the regulation of the ALC. Suggestions such based have been made to the legislation in our country.ALC is the act of two or more individuals' limitation on competition implemented in methods such as accord, agreement, etc. From the concept we can derive three components of ALC, namely, in the aspect of individuals, ALC requires there be two or more individuals independent of each other; in the aspect of nature, ALC must take the form of accord, agreement between individuals, which should be acceptable to all parties involved; in the aspect of effect, ALC must strong enough to influence the competition, that is, to limit the competition.Due to its nature against competition, ALC may cause harm to the proprietors, consumer or even public interests. To encourage and protect fair competition is the tenet and basic task of Competition Act. As one of the three backbones of anti-trust law, the regulation of ALC determines the realization of the value of Competition Act. The regulation of ALC can ensure the fair and effective competition among proprietors and their legal rights, which will further protect the rights of the consumers by ensuring that they get the best and reasonably-priced service. Subsequently, this will help to maintain the fair competition order, to establish a reasonable structure of market, to promote the development of technology and to realize an effective protection of the public economic interests. Such a discussion on the issue of ALC is especially important in our country's endeavor to establish a fair and ordered market.In the regulation of ALC, there are two principles, i.e., the Per Se Rule and Rule of reason. They are conceived in UK's custom law and case laws in the regulation of ALC, first outlined America's case law, firstly applied in regulating the accord of limitation on trade and then in the regulation of the whole horizontal and vertical limitation and otheranti-competition acts. Nowadays, the anti-trust laws of many countries employ these two rules to judge the unlawfulness and punishability of ALC. Per Se Rule and Rule of reason both have advantages and disadvantages, with each having relatively independent application areas and methods. The traditional binary method and unity scheme has proven problematic in the actual practice, hence we propose here that we should combine them, i.e., to judge the unlawfulness of a deed usually by Per Se Rule, allowing the accused the chance to propose legal justification. The Rule of reason that requires the accused to bear such responsibility as onus probandi is, by nature, a versatile application of Per Se Rule.ALC can be divided into the horizontal limitation accord and the vertical limitation accord according the different phase of the enterprises involved in the merger. The two accords have different harm to competition, the horizontal limitation on competition accord do solely harm to competition, whereas the vertical limitation on competition accord is not so obvious and may have a promotive effect. Hence they are treated differently, the horizontal limitation on competition accord has always been the key in the regulation of anti-trust laws, whereas the vertical limitation on competition accord is a question of the selection of value, the judgment of whose legality depends on the analysis of the competition policy and whose unlawfulness are confirmed with much prudence. For such considerations, the present research explores their regulation separately, and compares and analyzes the legislation and justice of several countries and regions with contrastive and empirical methods.With its provisions of strong principles and flexibility, anti-trust law has woven an perfect net of law. Nonetheless, all the competition accords are harmful to competition, and anti-trust laws prohibit only those accords that counter or limit competition, remitting those not harmful. Hence the remission of ALC becomes a special and crucial system. Generally speaking, ALC that can be remitted include such types as reasonable ALC, export and import ALC, depression ALC, middle and small corporations ALC and ALC that involves intellectual property.In nowadays' China, ALC takes various forms such as the proprietors limit price, limit production, division of market, united boycott, collude in public bidding, maintenance of resale price, etc. The provisions of ALC of the laws now in effect include: the 15th provision of Anti-trust Law, the 14tt provision of Public Budding, the 1st item of the 14th provision of the Price Law, and rules, notices and regularities publicized by the State Council such as Regularities on the Management of Price; Notice on the Further Breakdown of the Blocks of Local Market and Regulations on the Prohibition of Public Enterprises' Limitation of Competition Acts, and, apart from all these, local regulations of Hainan, He'nan, Sichuan, etc about ALC. Such a law system, mostly administrative regularities, lacks a common foundation and is inferior in its authority, nor do they have an independent and powerful executing organization to ensure the execution of the laws. In a word, although such laws and regularities prohibiting ALC have restraint to some extent the ALC in existence, the effect is quite limited on the whole. Aiming at solving such problems, the author proposes suggestions on the regulation of ALC, where the novelty of this thesis lies.