| Nowadays, there is a great deal of tying behavior in China, and it has many kinds of types of this behavior. Along with the social and economic development, new types and executors of tying are emerging in an endless steam. The illegal tying behavior is complicated and changing all the time, which not only destroy the market competition order, but also damage the consumers' interests. The foreign countries almost use Competitive Law to restrict tying, as well as China. European and the USA have being developed the economic theory of tying, and the lawful analysis of tying, which reveal the influence of tying towards the market competition from different aspects. Compared to the foreign countries, the economic theory and the law system of tying in China are still superficial. We need to perfect the jus, executors, judging standard and legal obligations of tying in order to make the law more practical.This article introduce the tying behavior from several aspects, analyses the effect of tying on market competition and propose the judging standard of illegal tying, basing on the interrelated research of the native and foreign economic theories and institution of law. Through learning the good experience of foreign countries, combining with the analyses of current situation and legislation of tying in China, this article proposes the suggestion of legislation, in order to give some reasonable proposal to the construction of the tying law system.The article consists of six parts, except the exordium.Part One: This part gives a general overview of tying. It introduces the meaning and the types of tying, expounds the economic theories on tying, including the Classical School, the Chicago School, the Post-Chicago School. Then, this part also proposes the necessity to restrict the tying behavior basing on the analysis of the tying influence towards market and the meaning of the confinement for tying.Part Two: This part puts forward a judgment standard of tying from a law sight. The formulation of illegal tying standard is a difficult but important one. This article divides the illegal judgment standard into two parts. One is the establishing factors, the other is illegal constituted standard. As to the established standard, it consists of two factors. One is existing two different products, the other is existing trade relation on tied product. As to the illegal constituted standard, the main judgment is to determine whether exist the executor's market power and the influence to market competition virtually. This part also analyzes two jus of tying and expounds the merits and shortcomings about the two judge theories which are Perse illegal and Rule of reason. Since not all the tying arrangements are anticompetitive, the tying behavior which promotes the social welfare should be immune. Therefore, this part proposes that if the following three situations exist, which are maintaining the public interest, protecting the goodwill and quality of the products, developing rising industries, the tying arrangements would be immune.Part Three: This part analyzes the current situation and the legislation of tying in China at great length. As to the current situation of tying, I divide the executors into two types. One is public service enterprise or monopolistic enterprise, and the other is the enterprise which has the relative economic advantage. As to the legislation related to tying in China, I mainly analyze Anti-trust Law Clause 17 Item 5, Anti-unfair Competition Law Clause 6,12 and other relational rules, and also analyze Consumer Protect Act Clause 9 and 10. Then I propose the deficits of current legislation restricting tying which include four aspects. Firstly, the law system is incomplete, and there are repetitions and omissions among the rules. Secondly, the tying executors are defined intangibly. Thirdly, the illegal judging standards of tying are too simple and the factors of immune are intangible. Fourthly, the legal obligations of tying are oversimplified and uncritical.Part Four: This part mainly introduces the legislation of tying in foreign countries and expounds its referential experience. I firstly analyze the rules which restrict the illegal tying arrangements in the USA, including Sherman Antitrust Act Clause 1 and 2, Clayton Antitrust Act Clause 3, Federal Commission of Transaction Act Clause 5, and so on. I also expound the difference and interaction of the regulations mentioned before, according to the application and the restrict method. Then, I simply analyze the legislation of tying in European Union. The main rules are EC Treaty Clause 81 and 82, which restrict two types of tying respectively. One is tying arrangement basing on the agreement, and the other is tying arrangement basing on monopoly. According to the analysis before, I point out the useful experience from foreign countries, and expound the enlightenment for China in three aspects.Part Five: This part proposes legislative suggestions towards tying from four aspects. Using Anti-trust Law, Anti-unfair Competition Law, Consumer Protect Act, administrative regulation, department rules and industry legislation, we can restrict tying arrangements from several point of view. In this way, we can establish complete jurisprudence of tying. This part makes the applying of jus towards tying clear, and proofs that we should mainly use Rule of reason to restrict tying, and use Perse illegal to assist the application of it. I also expound how to work out the judging standard of illegal tying arrangements, and propose my own point of view. In my opinion, the standard includes four factors. Firstly, there are two different products or service. Secondly, the executors of tying are monopolist. Thirdly, the tying arrangements obstruct the market competition and the consumers' choice. Fourthly, they don't have immunity. Finally, I expound how to perfect civil liability, administrative responsibility and criminal liability of tying. In this way, I want to help our law institutions to restrict illegal tying arrangements more effectively to preserve the market competitive order.Part Six: Conclusion. Through the economic analysis of tying, we could see tying arrangements have both positive and passive influence on market. In order to eliminate the passive influence of tying, it is necessary to restrict tying arrangements. We should mainly apply Rule of reason to restrict tying, and use Perse illegal to assist the application of it. To establish jurisprudence of tying completely, we could use several kinds of regulations to restrict tying from several aspects. As to the executors of illegal tying arrangements, we could divide them into several types in order to make the administration and analysis of tying more convenience. At last, this part proposes the judging standards of illegal tying arrangements to make the law can be applied easily. |
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