On The Private Effect Of The Illegal Act In The Anti-monopoly Law

When trailing the antitrust cases, the private judge effect of the illegal act inAnti-monopoly law is an inevitable problem. But the Anti-monopoly Law in China have notclearly defined this problem. So we can only regard the General Principles of the Civil Law,the Contract Law and judicial interpretation as the applicable basis and judgment criteria. Inthis way, the mandatory rules in civil law is the channel connecting the Anti-trust Law andPrivate Law, and it has the function to make the Anti-trust Law enter the field of Private Law.But the the mandatory rules in civil law are not just the legal provisions, and maintaining theprivate judge effect of the Anti-trust Law to illegal act is not a simple problem that can cometo a conclusion by citing the civil law provisions. Through the civil law system thinking tojudge the private law effect of anti-monopoly law, it will certainly involves the matter thathow these two legal system with different thinking mode have mutual support andcooperation. In another word, when maintaining illegal act in the anti-monopoly law, weshould not only pay attention to the traits of anti-monopoly law, such as the illegal degree ofthe illegal act, the purpose of regulating the behavior of anti-monopoly law, market objectiveenvironment, transaction security, and the interest of the third person in the trade etc, but alsoavoid violating the existing logic and system thinking of civil law.This paper will begin with the discussion of two completely different trails, and lists theconflicts and the disputes that we are facing during the private law judge of illegal act inanti-monopoly law. And then explore the domestic and foreign relevant theories. On thatbasis, the two elements needed for consideration in the private law judge effect ofanti-monopoly law to illegal act will be highlighted, that is, the legal standard effect attributesand public orders and social ethics. After analyzing the existing theories, this paper trys toarouse another theory,"purpose explanation theory of antitrust standards". This viewpointreconciles the contradiction between the existing theories on private law judge effect ofillegal act in civil law and the features of the anti-monopoly law. And with standard objectiveinterpretation, the problems that arouse during the judge of anti-monopoly law to illegal actwill be dealt with properly. And in the last, the theory will be illustrated and with this theory, the three big entity content of the anti-monopoly law in China will be analyzed and there willbe responses for the monopoly agreements cases mentioned in the beginning of the paper.Section one,"conflicts and disputes in the private law judge effect of anti-monopoly lawto illegal act", with the comparison between the two sentences "The high court in ninety-oneyear, the100th civil judgement " and "Gaoxiong branch court of he high court in ninety-oneyear, the50th civil judgement", it raises the problems of private law judge of anti-monopolylaw to illegal act.Section two,"the main theories about private law judge effect of anti-monopoly law toillegal act". With listing and analyzing the existing domestic and foreign theories, we canmake the private law judge effect of anti-monopoly law to illegal act to have a long standinglogic and system thinking mode of the private law.Section three,"analysis on the factors of private law judge effect of anti-monopoly law toillegal act". On the basis of the section two, we can futher conclude the factors regardingprivate law judge effect of anti-monopoly law to illegal act. And we will discuss the questionfrom two sides in traditional theories, that is, the legal standard effect attributes and publicorders and social ethicsSection four,"the reconstruction of the evaluation framework of private law judge effectof anti-monopoly law to illegal act". After analyzing the existing theories, we try to arouseour own theory,"purpose explanation theory of antitrust standards". It can reconciles thecontradiction between the existing theories on private law judge effect of illegal act in civillaw and the features of the anti-monopoly law. And with standard objective interpretation,the problems that arouse during the judge of anti-monopoly law to illegal act will be dealtwith properly.Section five,"the recognition of private judge effect of anti-monopoly law to illegal act".This section is the expansion of the antitrust purpose explanation theory in the field ofantitrust substantive laws. With the analysis of the forms, we can draw a preliminaryconclusion of the three big antitrust contents in the maintaining of the private law.