On The Illegal Determination Principle Of Monopoly Agreement

Since mankind enters the capitalist society, monopoly, as concomitant of economy, always exists in economic activities. Many countries take measures to restrict monopolistic negative impact on economic development. According to the amount of economic organization, monopoly can be divided into two categories, namely, one means the exclusive organization of the single economic scale of operation to achieve a certain market share (market concentration), and abusing its market dominance to obtain high profits; the other refers to two or more economic organizations which obtain market dominance by certain behaviors (trust agreement) and abuse this advantage to obtain high profits. In the modern economic environment, a single economic organization possessing an absolutely dominant position in market becomes less and less, and the monopoly in the market is mostly consensual. This article attempts to analyze the illegal and confirmation aspect of consensual organization. At present, most countries have promulgated and implemented the Anti-Monopoly Law, and defining monopolistic behavior accordingly. But because of the ambiguity of the law and the inconformity of the legal provisions in a specific implementation environment, the common problems with which modern countries are faced in the anti-monopoly judicial practice are to judge whether some behaviors is monopolistic and to define the illegal monopolistic behavior. After a long judicial practice, the US-led in the world’s developed economies gradually forms the two basic principles, namely the per se rule and the rule of reason, which has a major impact on anti-monopoly regulation and implementation of the rest of the world. China’s market economy was created relatively late and accordingly the economic legislation lags behind. After1August2008, China’s Anti-Monopoly Law was officially promulgated and implemented. Like the legislative practice of other countries, it gives some prohibited provisions to monopoly agreements.However, there also exists some backwardness of the provisions and non-operation in the actual enforcement process in China’s anti-monopoly law; namely, it lacks the clarity on the definition of monopoly and illegal criteria, seriously affecting the "anti-monopoly law effective implementation. Together with long-term impact of the old system, the legal framework to be perfected, the overall quality of judicial officers to be improved and lack of judicial experience and other factors, the effective implementation of the anti-monopoly law are faced with many difficulties. On the basis of monopoly agreement, the thesis introduces the basic theory of monopoly agreements, the concept of, characteristics, background, scope of application, shortcomings and development directions of the per se rule and the rule of reason, the definition and the implementation of the illegal monopolistic behavior in the United States and Europe and its enlightenment to China。By comparing their advantages and disadvantages, the thesis attempts to give some references to the effective implementation of China’s the Anti-Monopoly Law. This article is divided into three parts:The first part introduces the concept, constituent, characteristics and classification of monopoly agreements, and the process of illegal recognition principle, and the concept, feathers, scope of application, and its disadvantages of per se rule and rule of reason. The second part dwells on the evolution of the illegal recognition principle of monopoly agreement in the United States and Europe and the enlightenment to China’s illegal recognition principle, which provides some legislative and judicial help. The third part is involved with some thinking on China’s monopoly agreements illegal, which proposes that China should build a reasonable principles-based mild illegal confirmation system and further improve the system of exemption, forgiveness system, anti-monopoly law enforcement agencies functions and enhance the quality of law enforcement officers and the anti-monopoly law extraterritorial applicability...