Study On The Per Se Illegal And The Rule Of Reason Of AMA Of America

Per se illegal and the rule of reason are two important principles of the United States inthe development of long-term anti-monopoly judicial practice. These two principles arecollectively referred to as the Illegal confirmation principle of anti-monopoly law. Antitrustlaw is an important legal regulating market competition; Westerners call it the "economicconstitution". However, antitrust law has inherent uncertainties, mainly in three areas: theuncertainty of the language, the monopoly itself and the anti-monopoly value targets. Theuncertainty of the antitrust law determines that the activities of antitrust law explanation arevery important for the implementation of the antitrust law. In the beginning of the ShermanAct, Simplistic legal provisions and the complex economic activities make the Sherman Actalmost does not have any practical guidance and operability. In this context, the courtenabled the rule of reason to analyze cases, in order to make a mechanical explanation to“trade restrictions”. However, the rule of reason study focused on the purposes of conductand consequences, this increases the cost of judicial review, coupled with the long-termjudicial practice, the court found that certain types of behavior must be illegal, so the courtclassified this type of behavior to the per se illegal activities.In fact the application of the rule of reason and per se rule in antitrust cases in theUnited States was not a clear, entirely different state. It is constantly evolving. Now, onlysome monopoly agreements which closely related to the price will be considerednecessarily illegal. If an act can’t be classified per se illegal, then, It will be applicable tothe rule of reason. But the complex economic analysis and the high cost force court to makeInnovation, it is the simple rule of reason.Chinese Antitrust law implemented in2008, the lack of anti-monopoly legislation andjudicial experience make the law is full of obstacles in the implementation process. Thejudiciary hearing experience and ability are short. In addition, with the development ofeconomic globalization, domestic and foreign market competition is more intense, our taskto improve the efficiency of the market economy is more urgent. Therefore, at this stage ourIllegal confirmation principle of anti-monopoly law should make per se illegal based,supplemented it with the rule of reason. Improve the per se illegal act, and explore thespecific standards of China’s simple rule of reason.