The Research About The Illegality Identification Of Minimum Resale Price Maintenance

There are more and more cases of minimum resale price maintenance implemented by China’s enterprises since 2010, and the number is increasing year by year. A large number of cases such as "2010 Ruibang v. Qiangsheng case", "2013 Mao-tai v. Wuliangye case", "2013 Essilor/Bausch & Lomb and other glasses case", "2014 FAW-Volkswagen case" and "2014 Chrysler case" highlight the deficiencies and defects of Antitrust Law’s regulation to minimum resale price maintenance, the core problem is illegality identification of minimum resale price maintenance. For this problem, the current theory of antitrust law does not form a consistent rule of illegality identification, the existing legal provisions are too abstract and general and lack of internal logic of unity. This article is based on this and makes a investigation about the definition and classification of minimum resale price maintenance, principles and paths of illegality identification.In addition to the introduction, this article mainly consists of the following four parts:Part I: The theory of illegality cognizance of minimum resale price maintenance. First, define the minimum resale price maintenance scientifically based on the analysis of representative academic views, and integrate with the new types of minimum resale price maintenance occurs in the enforcement and judicial practice; Secondly, for further analysis and research, classify the complicated actions which emerged in the antitrust judicial practice depending on the following three standards: the different mechanism of implementation, the different aspect of parties to the transaction and presence or absence of the lateral joint of the upstream business.Part II: Principles of illegality identification of minimum resale price maintenance. There are two principles of identifying an act legal or not according to the antitrust law: the per se rule and the rule of reason. When determining the principle of illegality identification, in addition to a reasonable measure of the advantages and disadvantages of the two principles, we should also analyze the dual effect to the competition, learning from the experience of US, the European Union and other countries and regions, considering the status of the implementation of China’s antitrust law, and conclude with a comprehensive comparison: illegality identification of minimum resale price maintenance should apply the rule of reason.Part III: Paths of illegality identification of minimum resale price maintenance. Firstly, analyze the shortage of the relevant provisions of China’s "antitrust law" on the illegality identification of minimum resale price maintenance: the provisions are too abstract and general and lack of internal logic unity; and then with the guidance of the rule of reason and summarizing the academic point of view and learning from the " structured rule-of-reason approach " established by the US Federal Court and considering the illegality identification model used with the "Ruibang v. Qiangsheng case" by the Court, we put the paths of illegality identification into three steps: identification of subject, identification of subjectivity and identification of consequence. Identification of subject includes the identification of its nature and market position; identification of subjectivity refers to the purpose of the manufacturers and sellers whether they intentionally exclude or restrict competition or not; and for the identification of consequence, four factors should be taken into account: market competition order, market entry barriers, economic efficiency and consumer welfare. Through the three steps, identify the illegality of minimum resale price maintenance with a comprehensive comparison of the positive and negative effects to competition.Part IV: Conclusion. Give a brief summary of the overall content of the article: due to lack of theoretical research and vague of the current law, cases of minimum resale price maintenance occurs frequently. In view of this, we propose the rule of reason for the regulation of minimum resale price maintenance. It is to say that we should not identify it as offense necessarily when we make a illegality identification of minimum resale price maintenance, but apply the rule of reason and consider multiple factors, and then determine its illegality with thought of its positive effects and negative effects, so antitrust law can regulate minimum resale price maintenance effectively.In summary, the article analyze the illegality identification of minimum resale price maintenance through studying the theory of minimum resale price maintenance and selecting the principle of illegality identification and building the path of illegality identification, at the same time, considering the academic point of view domestic and abroad and experience of antitrust enforcement and justice, which may be beneficial to solve this problem.