Anti - Monopoly Law On The Refusal To Deal

Refusal-to-deal is defined as "Companies which hold the dominate position ofthe market refuse without reasonable excuses to sell merchandises or supply service tothe purchaser who offered reasonable terms". The refusal to deal belongs to abusingdominate position and was regulated by antitrust laws in many countries. But in ourcountry there are no laws to be referred to the refusal to deal, and the related study issuperficial and scattered at present. This article made effort to study and analyze thefruits of foreign scholars' study, by means of historical, contrastive and economicanalyses, and tried to give a systemic expatiation of the refusal to deal in the antitrustlaw with illustrating statute law and representative cases in Europe and America. Thisarticle is divided into four parts:Firstly, the author defined the concept and illustrated the foundational theory ofthe refuse-to-deal , then argued that the antitrust law has its own theory foundation ofregulating the refuse-to-deal behavior. The analyzed the deferent motivation andinfluence to the market of the refusal-to-deal behavior, and concluded the factorsshould be considered when the courts judge the behavior of refusing to deal. Secondly,the author introduced the statute law about refusal-to-deal in America, and madeparticular analysis of representative case, with stress on the "intent test" and "essentialfacility doctrine" established from precedents in America. Then analyzed the criticismfrom American economic scholars, and pointed out its unilateralism. Thirdly, theauthor introduced the legislation about the behavior of refusing to deal in Europe, andanalyzed the representative cases from the point of view of history. By comparing the"essential facility" principle between Europe and America, a conclusion is made thatthe attitude of legislation of the two parts is becoming consistent. Fourthly, byreferring to the advanced experience of other countries, the author raised several legalsuggestions to the antitrust law of our country which is under drafting.