Research On The Definition Of Refusal To Deal

Freedom of contract is the basic principle of civil activities.Freedom of contract is not absolute,but relative.According to the Article 17 of Chinese Anti-Monopoly Law,if the operators abuse their dominant market positions and refuse to enter into transactions with their trading counterparts,they are subject to the regulation of the anti-monopoly law and constitute an exception to the freedom of contract.Refusal to deal refers to the operators who hold dominant market positions refuse to enter into transactions with their trading counterparts without justifiable reasons.In the judgment of the operators refuse to enter into transactions with their trading counterparts to the illegal,we need to do scientific and rigorous analysis to accurately define the behavior of the operators is a manifestation of freedom of contract or an act of refusal to deal.China has repeatedly investigated and dealt with some cases about refusal to deal in recent years.In the future,the operators who hold dominant market positions may also refuse to enter into transactions with their trading counterparts to eliminate or restrict market competition.Therefore,how to accurately recognize refusal to deal is a new problem of enforcement practice and judicial practice of anti-monopoly in China.In this article,on the basis of theoretical research on refusal to deal,we will investigate legislative practice and enforcement practice on the definition of refusal to deal of the United States and the European Union.There are Subjective intention standard and Prohibit monopoly power expansion rules on the Definition of refusal to deal of the United States and the European Union.This article draws on the Definition of refusal to deal of the United States and the European Union,and puts forward some concrete suggestions on improving the Definition of refusal to deal in China,combining with the legislation,law enforcement and judicial practice of the refusal to deal.Firstly,we should further refine the legislation of the Definition of refusal to deal of China,explicit the constituent elements of refusal to deal,and construct the analytical method of the regulation of refusal to deal.Secondly,in the practice of law enforcement and judicial practice,the application of the standard of subjective intention should be perfected,distinguish failed to reach a deal of reasonable reasons with the refusal to deal.Finally,we should to regulate justifiable reasons of refusal to deal synthetically.