| Facing the market malfunction and the government malfunction, "the third party government mechanism" which takes the trade association as representative receives people more and more attention. On the one hand, the trade association may promote enterprise technological innovations, cause superior win and the inferior wash out, enhancing the enterprise market competitive power and so on, through exchanging of information and formulating the profession standard. On the other hand, the trade association may resist the government's excessive intervene to the enterprise, meanwhile it may provide the guide for the consumer to choose the product and serves, through announcing enterprise and product correlation information, formulating profession standard or some other ways. However, as enterprise benefit representative, the trade association has the counter-competitiveness naturally. Comparing with the general limit competition behavior, has the characteristics of that the polytropism of executors, the particularity of agreement, the confidentiality of the behavior and the serious harm. The various countries regulate the trade association limit competition behavior through perfecting the related legal regime unceasingly, while guiding the trade association to display the positive role. In our country, the development of the profession association is still in primary. It has the characteristics of the strongly administrative anaclisis, the function administration, the low profession coverage fraction, the low social trust, the fuzzy status and so on. The present law and regulations which regulate the trade association limit competition behavior in our country have the problems of the lowly legislation level, the chaotic system and some other problems. Therefore, to conduct the research of the laws and regulations which restrict the trade association limit competition behavior of our country, not only has the theory significance, but also has the practical significance.This article divides into four parts. On the foundation of the characteristic analysis of trade association especially analyzing which in our country, this article analyzes the characteristic and the manifestation of trade association limit competition behavior. Meanwhile, this article analyzes the laws and regulations which restrict the trade association limit competition behavior and finds out the problems of them. Through modeling overseas correlation legislation experience, I finally proposed the conception of how to perfect our country's correlation legislation towards trade association limit competition behavior.SectionⅠ: The outline of the trade association's basic question. This part elaborates three aspects. First, this part analyzes the trade association's definition and characteristic. The trade association is a non-profit earning association organizing, for the purpose of protecting and promotes its common interest which constitutes by the sole profession operator. The trade association is non-beneficial, intermediary and folk. Its members have the characteristics of the unitarity and competitiveness. It protects is the benefit of entire profession. Second, this part analyzes the trade association's significance and function. The trade association has enriched the residential society theory, and has consummated the theory of "the third party government mechanism". In practice, it has significant functions of protecting interests, promoting technical renovation, supply the consumers' demand and so on. Third, this part also analyzes the characteristics and current situations of the trade association in our country. Our trade association has the characteristics of the strongly administrative anaclisis, the function administration, the low trade coverage fraction and the fuzzy status.SectionⅡ: This part analyzes the characteristic and the manifestation of the trade association limit competition behavior. This part exposes two aspects. Firstly, I analyze the characteristic of the trade association limit competition behavior. It has the characteristics of the polytropism of executors, the particularity of agreement, the confidentiality of the behavior and the serious harm. Secondly, I analyze the manifestation of the trade association limit competition behavior. In practice, the manifestations are fixed price, carving up the market, information interchange, collective resistance and standard certification. SectionⅢ: This part analyzes the present laws and regulations which restrict the trade association limit competition behavior. This part exposes two aspects. Firstly, I expose the legal circumstance of trade association in our country. The legislations of the trade association are mainly laws, regulations, and administrations managing trade association which came into existence by the provinces and cities. The present laws and regulations restricting trade association limit competition behavior are mainly Anti-unfair Competition Law, Price Law, Temporary Regulation of Resist price monopoly, Anti-trust Law. Secondly, I analyze the problems of the present laws and regulations which restrict profession association limit competition behavior. At present, it doesn't have special trade Association Law. The present correlation legislation towards trade association is quite disorder, scattered, and the level of it is quite low.SectionⅣ: This part proposes the legislative conception of how to consummate the laws and regulations which restrict trade association limit competition behavior. This part exposes three aspects. Firstly, I introduce overseas legislative pattern which regulate trade association limit competition behavior, and expound its modeling significance. I also introduce single legislative pattern which takes the USA as representation and double legislative pattern which takes Germany and Japan as representation. Then, I expound their modeling significance for our country. Secondly, I introduce overseas law principle of the trade association limit competition behavior, and expound its modeling significance. I analyze Per se illegal, Rule of reason and "structured" or "truncated" rule of reason test. I also expound their modeling significance for our country. Thirdly, I propose the law system design of how to regulate trade association limit competition behavior. I suggest that our country use the dual legal rules and regulations pattern to restrict trade association limit competition behavior, including Anti-trust law and trade Association Law. Per se illegal should be used to regulate fixed price behavior and the collective resisting behavior which conducted by the trade association. Rule of reason should be used to regulate dividing the market behavior, the exchange of information behavior and the standard authentication behavior. Meanwhile, we may explore to use "structured" or "truncated" rule of reason test. Finally, I carry on the evaluation to Anti-trust law and point out the place where needs to consummate. I also propose my own view of the problem which must be pay attention to in the legislation of trade Association Law. |
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