A Research On The Anti-monopoly Regulation Of The Tobacco Corporations' Tying Practice

China is the country that manufactures and sales the largest volume of tobacco. Tobacco companies play an important role in promoting national economic development. Law of the People's Republic of China on Tobacco Monopoly specified that the law exercises tobacco monopoly administration, organizing the production and management of tobacco monopoly commodities in a planned way,and the State shall, according to law, exercise uniformed monopoly administration over the production, sale, import and export of tobacco monopoly commodities.China implements monopoly administration over the sales of tobacco commodities. Such a policy tenders tobacco company in a dominant market position, which leads to popular tying practice imposed on downstream distributors, depriving their autonomy of independent choice and right to fair deal, damaging their interest and original market economic order. Downstream distributor, as a vulnerable group, is unable to contend against tobacco company that possessing dominant market position. However, China's Anti-monopoly Law only promulgates several highly principled rules on tying practice, yet has no specific rule on whether per se rule or rule of reason shall be employed in determination of illegality of tobacco company's tying practice. Furthermore, current Anti-monopoly Law has several prevailing flaws: rather vague liability provision,the absence of liability provision for relevant duty officer, impracticable civil liability provision and the absence of criminal liability provision, rather extensive discretionary power of administration department. This paper, following the way of "finding problem--analyzing the problem---solving the problem", and "particularity comes after universality", carries out its discourse. Firstly, this paper, through specific analysis, concludes that tying practice brings far more negative effect than positive effect, upon which relevant regulation is of necessity. secondly, this paper defines tying practice of tobacco company, specifies certain standards, principles, methods and elements that should be taken into consideration for illegality determination whereof. Furthermore, this paper analyzes several specific rules of current Anti-monopoly law, and identifies their problems respectively, and proposes specific and practical suggestions accordingly.Apart from introduction and conclusion, this paper consists of four parts:The first part expounds on the particularity of tobacco company's tying practice and the necessity of regulation whereof by Anti-monopoly law. The particularity whereof includes: The conflict between the system of tobacco monopoly management and that of market economy; The overlapping structure of tobacco production unit and supervision department; Tobacco company's tying practice's certain geography restriction. In addition, this section mainly introduces the negative impact brought by tobacco company's tying practice, including strengthening tobacco corporation's monopolized operation, market entrance barrier, damaging the legitimate rights and interest of relevant downstream distributor and consumer, deteriorating information dis-symmetry between tobacco corporation and downstream distributor, upon which conclusion that Anti-monopoly regulation where of is necessary.The second part summarizes general anti-monopoly regulating method of tobacco company's tying practice. This section consists of three parts: determination of tobacco company's tying practice and that of illegality and legal responsibility whereof. This section unfolds its analysis from the perspective of subject element, object element, subjectivity element and objectivity element. In terms of subject elements, tobacco company possesses dominant market position and implemented tying practice, damaging the rights and interest of downstream distributors. In terms of object elements, tobacco company's tying practice brought disturbance to original economic order, damaging the rights and interest of downstream distributors. In term of subjectivity element, tobacco company implemented tying practice, without the consent of downstream distributors, to acquire monopoly profits, its subjective volition is intentional. in terms of objectivity element, tobacco company tying cigarettes of poor sale to downstream distributors. This four elements are the component standards of tobacco company's tying practice. Concerning the determination of illegality of tying practice, this section, after a brief introduction of the pros and cons of the per se rule and rule of reason, combined with China's current development situation of tobacco industry, points out that rule of reason shall be employed. Elements including the welfare of consumers, economic efficiency and market order shall be taken into consideration in the course of determining illegality of tobacco company's tying practice, so as to have a reasonable and proper conclusion.The third part reveals the deficiency of China's anti-monopoly regulation on tobacco company's tying practice. This section mainly introduces the specific provisions of current Anti-monopoly law and the existing problems whereof, including the simplicity and vagueness of administrative liability provision, specifically, extensive discretionary power, low standard of minimum amount of fine, absence of provision of relevant duty officer's punishment, impracticability of civil liability, absence of criminal liability, conflicts between anti-monopoly law enforcement department and tobacco industry supervision department, broken procedure of relief.The fourth part proposes a blueprint for anti-monopoly regulation of China's tobacco company's tying practice. Based on the problems revealed in the above section, this section, with reference to foreign legislation and combined with China's current development situation, proposes practical advises and suggestions, including the improvement of administrative liability provision, i.e. restricting law enforcement department's discretionary power, increase of minimum amount of fine, establishing the system of relevant duty officer's administrative punishment, specifying those civil liability provisions, establishing a new criminal liability provision, coordinating the relation between anti-monopoly law enforcement department and tobacco industry supervision department, perfecting the relevant procedure of reliefs. By implementation of the above suggestions, China's tobacco industry is expected to develop healthily.