The Anti-monopoly Law Regulation On Behavior Of Restraint On Competition Of Trade Association

The cases about the behavior of restraint on competition of trade association happened frequently in recent years. The Insurance Trade Association of Zhejiang Province was punished by the NDRC because of price-fixing, which caused the people’s extensive concern from all walks of life. Apparently trade association has become the object that cannot be ignored by the antitrust regulatory enforcement agencies.Overall, there are many problems connected with the regulation system of the behavior of restraint on competition in our country. In the term of the rules of the trade association itself, the two main problems of which were exposed are the system of dual control and the lack of democratic management in the trade association. In the term of legal system, although the regulations were created by both national and local legislature, we can still find many problems about legislation of our country: for example, the regulations are fragmented, the dual nature of the behavior of restraint on competition of trade association is ignored, the lack of regulations about specific types of the behavior of restraint on competition and the provisions of the legal responsibility system is simple and crude. In the term of law enforcement, NDRC and SAIC take charge of the regulation of the behavior of restraint on competition and the two authorities have paid a lot attention to it. But there are still some problems connected with the law enforcement, of which the most outstanding two are the chaos caused by the duplicate law enforcement and the poor effect of private enforcement.The most direct reason for why we should pay much attention to the behavior of restraint on competition of trade association is that such behavior affects the normal competition order in market and produces adverse effect on economic growth. And the theoretical basis for the regulating includes two parts. First, the legal basis. Firstly, the priority of public interests. If the trade association weight the industry interests on the social and public interests when the two interests conflict with each other, the behavior of restraint on competition is most likely to be implemented. It is the damage to the public interests impel us to regulate such behavior. Secondly, the limitation of freedom of contract. The agreement reached by the members of the trade association is illegal because such action damages others’ legitimate interests. This kind of behavior is abuse of the freedom of contract, because any exercise of the rights shall not damage others’ legitimate interests. The last one is the necessity of protecting the consumers’ rights and interests. Because the behavior of restraint on competition of trade association damages the consumers’ rights and interests seriously and the protection of consumers’ rights and interests is one of the important purposes of anti-monopoly law, such behavior shall be regulated by the anti-monopoly law. Second, the requirements of the economic value orientation. Both the improvement of the social integral efficiency and the realization of the substantive justice on the economics need high efficiency and one of the key factors to realize high efficiency is the maintaining of effective competition. Therefore the damage to the competition caused by the behavior of restraint on competition of trade association shall be avoided.The relevant local regulations occupy an important position in our country’s legal system of the behavior of restraint on competition of trade association. Most of the relevant local regulations clearly define the nature of the trade association, the limiting competition behaviors that the trade association should not engage and much more types of responsibility that the trade association should bear. These are worth for reference for the revision of Anti-Monopoly Law. But we should also notice that there are some shortages in the local regulations. This requires that we should envisage the relationship between the Anti-Monopoly Law and the local regulations, regard the Anti-Monopoly Law as the leading factor and play the initiative and the flexibility of the local regulations.The regulation system of the behavior of restraint on competition in our country needs to be improved as soon as possible. The first aspect is to reform the rules of trade association itself. We can replace the system of dual control with compliance regulation system and expand the power of the general assembly to improve the democratic management in the trade association. The second respect is to improve the legislative system. Among them, the first point is to set a special chapter in the Anti-Monopoly Law. The second point is to improve the legal responsibility system. The last aspect is to improve the law enforcement system. Establishing a unified anti-monopoly enforcement agency like the Japanese did and improvement of the private enforcement are important.