Antitrust Exemptions

Exception system is an important component of the whole antitrust legal system. It cooperates with the banning system which is the main of antitrust law and plays an important role in safeguarding the social and public interests and the overall national economic interests. The market economy countries such as the United States, Germany and Japan, have established a fairly complete system of exception from application of antitrust law. China has promulgated the "antitrust law" which contains a few provisions on exception. Therefore, China's antitrust law has initially established the exception system.There are different views among Chinese scholars about exception and exemption, a lot of people mixing up the two, not to draw a strict distinction. In the first part of this paper, the writer mainly defines the concept of exception and makes a preliminary study on the differences between exception and exemption.In the second part of this paper, the writer discusses the meaning of the system of exception from application of antitrust law, and thinks that it is mainly manifested in three aspects. Firstly, to help in certain areas (that is, the exception areas) to overcome the negative impact of free competition, and to make the monopoly play a positive role in optimizing the allocation of resources and improving the efficiency of resource use. Secondly,to coordinate anti-monopoly and the development of economies of scale. Thirdly,conducive to maintaining the social and public interests and the state's overall economic interests.In the third part of this paper, the writer considers that there are three main criteria in establishing the scope of exception from application: the criterion of effective competition, the criterion of policy, the criterion of unity about fairness and efficiency.In the fourth part of this paper, the writer discusses the scope of exception from application in detail, and thinks that the scope of exception from application of China's antitrust law should mainly cover specific industries, organizations and personnel and the field of foreign trade. The specific industries include agriculture, the state monopoly. The specific organizations and personnel include trade unions, consumer associations and labor.As to whether the antitrust law is applied to the banking and insurance industry, it was not clearly defined. The writer thinks that China's antitrust law should be applied, to some extent, to the banking and insurance, which might be included in the scope of exemption. Thus on the one hand, certain monopoly acts of the banking and insurance, such as horizontal exchange of information or coordination, should be exempted. On the other hand, if the departments of banking and insurance abuse their monopoly status and legitimate rights to harm the interests of the depositors or policyholders, they should be punished by antitrust law.As to whether the antitrust law should be applied to the natural monopoly industries, there are great differences of opinion among Chinese scholars, and the "antitrust law" has also not clearly defined. The writer thinks that China's antitrust law should be generally applied to the natural monopoly industries. At the same time, the writer stresses that we should make a fuss about the special legislation and the antitrust law can only play a supporting role.As to the issue of intellectual property, though our many scholars consider that it is included in the scope of exception, the writer thinks that the exercise of intellectual property rights is legitimate, in accordance with the intellectual property law. Thus there does not exist the so-called exception of intellectual property. In contrast, China's antitrust law must be applied to the field of intellectual property to strictly control the abuse of intellectual property rights.In the fifth part of this paper, the writer suggests we should perfect the system of exception in the aspects of legislation, written language and concept expressed.