Industry Association, The Legal Restriction Of Competition Regulation

Trade associations restrict competition with its decisions, which is so called trade associations' behaviors restricting competition. From the theory of competition law, the trade associations' behaviors restricting competition belong to combined behaviors restricting competition; however, they have particularity hereinafter compared with the general combined behaviors restricting competition: behaviors restricting competition are implemented by trade association other than a specific business unit; the process of implementation is covert which is covered by performing autonomy functions; the behaviors belong to horizontal behaviors restricting competition basically; the outcome of the behaviors possibly makes the members gained unfairly, even the benefits of big members is at the price of the lose of small members. Trade associations are non-profit organizations; their behaviors restricting competition have deep causes, which contain the economic attribute of associations' members, the pursuit of special interests of associations and function predominance of associations. They incorporate hereinafter: the members of associations are profited business units, their tenet is the protection and enhancement of the maximum interests of members and the general interests of associations, its function predominance is autonomy of having power attribute. In practice, the trade associations' behaviors restricting competition are mainly incorporated six manners hereinafter: the behavior of fix-price, divide the market, restrict the output, the boycott, the information exchange and the implement of standardization. These behaviors restrict even eliminate competition in some degree, hit the enthusiasm of product or service of relevant business units, make the terminal consumers not share the goods and service which should be shared. Further more, the behaviors have high efficiency of implementation, so the harm is deeper and wider. We can say, the trade associations' behaviors restricting competition make against free competition of market, the advance of economic efficiency and protection of interest of consumers. On the condition of market economy, using the law regulate trade associations' behaviors restricting competition must incarnate the ideas of free competition, economic efficiency and protection of consumers' interests, the ideas constitute theory foundation of regulating the trade associations' behaviors restricting competition by law at the same time.In practice, the developed market economy countries all carry out regulation to the trade associations' behaviors restricting competition. From the regulatory mode of the law, mainly contain the unitary regulatory mode by antitrust law which is represented by United States, and the dualistic regulatory mode by antitrust and special law of trade association which is represented by Europe and Japan; from the regulatory principle of law, the per se and rule of reason are applied generally which are developed from United States; from the regulatory methods of law, the United States mainly uses case law to regulate, and the Europe and Japan use statute law for regulation. To our country, we should use the dualistic regulatory mode applied by Europe and Japan for reference, at the same time use the method of setting up special chapter to regulate trade associations' behaviors restricting competition which exists antitrust law of Japan for reference.; and apply per se and rule of reason flexibly according to the need of practice on regulatory principle; and apply statute law on regulatory method, because our country does not admit the authority of the case. In fact, the quantity and harm of the trade associations' behaviors restricting competition of our country are increasing, and also have particularity of administrative color; but the effect of legal regulation is too bad in our country which is inconsistent with the realism, the imprecation of legislation and the ineffective execution are the main problems. At present our country does not have special rules, which regulate the trade associations' behaviors restricting competition, moreover, the rules of antitrust law draft, which is discussing do not have pertinence and fault of weak operation; at the aspect of execution, it is ineffective because there are not laws to accord. So, it is important to reestablish the regulation to regulate the trade associations' behaviors restricting competition in our country. Therefore, I put forward the ideas on regulating the trade associations' behaviors restricting competition of our country, namely, all-around regulation: first, establish the antitrust law, and set up the special chapter to regulate the trade associations' behaviors restricting competition, second, establish the timely detailed rules or guidelines of antitrust law to adapt to the need of realism, besides, make the regulation operated more effectively because of detailed rules; third, establish the special law of trade association, ascertain its charter and rules of behaviors to guide it to avoid implementing the behaviors restricting competition; fourthly, expedite the built of execution teams, improve the diathesis of related people, make them comply with the law, execute the law strictly, went behind the unlawful behaviors, to assure regulate the trade associations' behaviors restricting competition effectively; fifthly, carry out the reform of system simultaneously, clear the relation between government and trade associations, eliminate the administrative color of trade associations' behaviors restricting competition, make trade associations develop normally.