The Dilemma Of The Implementation Of The Rule Of Reason And The Solution

The rule of reason produced from common law in the United States with a strong spirit of common characteristics.The rule of reason is the product of specific times under the specific American legal system,and as such,the EU competition law did not transplant the rule of reason directly at that time,but the changes were made in the form of rational principles derived exemption system.to better meet the statutory logic of determination,such changes are inevitable and also necessary.The legislative of Chinese <anti-monopoly law>,learned more about EU competition law,and therefore did not make any provisions of the rule of reason in the current law,precisely,even if considered China's "anti-monopoly law" provision reflects the principle of reason but the rule of reason does not exist institutionally.In RuiBang company monopoly case,according to the logic of the Court's analysis,it essentially applies the rule of reason.Pest Management Association in Shenzhen monopoly case,the logic of analysis has no difference compare to RuiBang case,the only difference is the court clearly confirm that we must apply the rule of reason.Because Chinese <anti-monopoly law> has no the rule of reason,directly applicable court led to judicial legitimacy problem.The first is the analysis logic does not comply with the law,and because the principle of a reasonable part of possible sources of law,the availability of the necessary legal origins worthy of scrutiny as a reasonable argument principle applies under the premise of reason.Skip court rules directly applicable principle is also not consistent with the rules and principles applicable rank.However,for cases of monopoly agreements,the attitude of the law enforcement agencies more conservative rule of reason,but also in accordance with the law of the referee too much and no reasonable analysis,the referee gives a sloppy impression.In fact,the judiciary overly conservative attitude towards the rule of reason applies abrupt and law enforcement agencies authority to reflect a reasonable understanding of the principles still too vague.Due to the principle of reasonable institutionalized produced in the United States under the law background.In fact,the rule of reason institutionalized in the European Union has ceased to exist,replaced by a system of rule of reason to draw the relevant analytical techniques and mental exemption system.Since the provisions of anti-monopoly law is very abstract,with good principles applicable reasonable space,but needs to redefine its meaning,streamline its relationship with the Constitutional Law,the rule of reason in China before they could well have been rights institution applies.