The Regulations On Abuse Of Superior Bargaining Position In Competition Law

With the continuous development of modern economic and technology, somemarket entities which don’t have a dominant position often abuse their comparativeeconomic advantage to deprive the counter-party’s trading options and further distortthe fair transaction order in their commercial relations. Quintessentially, the problemthat large retailers collect the "entrance fee" becomes more and more prominent.Basing on the elementary theory of antitrust law, combing the different theoreticalperspectives in academic, this paper theoretically analyzed the necessity of regulatingthe issue of Abuse of Superior Bargaining Position (ASBP) in competition law.Meanwhile, a comparative research on the legislation and enforcement of the majorcountries and regions is carried out from regulation modes, concepts to contents. Inthe last place, basing on the status of legislation and law enforcement in our country,this paper put forward several related suggestions on establishing a system ofregulating ASBP in competition law in china pointedly. There are three chapters inthis thesis:Chapter1: Start with lots of ASBP phenomena, then introduce the concept ofASBP briefly and make comparison with related concepts in antitrust area toemphasize its independence in regulation, after that, expound the necessity ofregulating the issue of ASBP in antitrust law from both theory and reality aspect. Chapter2: Comparative study on ASBP in the major countries and regions fromregulation attitude, legislation mode and case handling aspects, and analyze thedeep-seated reasons behind the difference, furthermore, summarize severalworthwhile methods and thoughts. This chapter notes: with the development of thetheory of competition law and the increasing of realistic demand, the viewpoint ofregulating ASBP in competition law has been the mainstream. As to the regulationconcept, considering that such behaviors are likely to have a negative effect on twomarkets’ free competition order, thus reduce the social overall economic efficiencyand cut down the consumer welfare, the concept of protecting the freedom ofcompetition in antitrust law would be a better choice. And the relatively maturetheories and rich experience in practice on criteria for assessing superior bargainingposition, analysis of abusive conduct and remedies in jurisdictions from Japan, Korea,and Germany will be helpful to China’s legislation and law enforcement.Chapter3: Basing on practical problems and the present situation of regulation inour country, put forward some relevant proposals on establishing a system ofregulating ASBP in competition law in china: Add special provisions on ASBP in<Anti-Unfair Competition Law> by using the amendment of this law, including thedefinition of superior bargaining position, the constitutive requirements, legalconsequences and other basic contents of ASBP. In the meantime, more detailedfollow-up rules, guidelines and relevant judicial interpretations should be issued later.