On Safe Harbor Rule Of Resale Price Maintenance Agreement

Existing Laws and regulations in China about how to recognized the legitimacy of the resale price maintenance agreements lack of clear guidelines,so that Chinese administrative law enforcement agencies in the review process tend to apply "illegal presumption principle",which just complies with the resale price maintenance agreement form elements can presume it eliminate or limitation competition effect.The court tends to apply the principle of "reasonable principle",which is different from the principle of "one element ",which emphasizes the proof of eliminate and limitation of competition effect.Although both of them have certain rationality,with the economic development and academic research,the regulation of the resale price maintenance agreement gradually reflects the "tolerance attitude".First part of the text is in such an environment that scholars think about the operability of "reasonable principles" and put forward the "structural rational principle".It is in the reasonable structural principle,under the guide of safe harbor rules,we should carry out a tolerant attention by the governments,namely before the review covers alleged monopoly agreement,according to the operator's market structure.The conduct of agreements with small-scale operators that do not have a serious impact on competition will not be reviewed.And "structural" for the principle of reasonable limits,forcing safe harbor rules should not only be a threshold or a standard is put forward,which should be based on safety platform and design a set of complete review rules,fully implement the special needs of structured.The second part is about the theoretical argument about the rules.The guiding role,therefore,is mainly discussed from the following six aspects: First,the value balance is the theoretical basis for thinking about safe harbor rules.Antitrust law in our country for resale price maintenance agreements attitude has always been "tough",once negating the agreement's behavior.To promote the possibility of competition,such excessive intervention will only undermine the balance of the freedom of competition and will last longer impair social justice.The safe harbor rule is precisely a pair of "end-of-pipe" anti-monopoly law.Second,the faulttolerant mechanism enables the safe harbor rules to be balanced.Balance needs to take account of each other,fault tolerance can reduce loss,and the safe harbor regulation under the reasonable principle of structure is a set of fault-tolerant mechanism Thirdly,the rationality of the form of limiting the application of the safe harbor rule also enhances its feasibility.This mechanism is inseparable from the vertical relationship between the resale price maintenance agreement and the horizontal monopoly agreement.The goodwill of the agreement and the “white space” of the judicial system have laid the ground for the safe harbor rule.Fourthly,the promotion of competition is undoubtedly the condition of the design of the rules.The goodwill arising from the agreement comes from the resale price maintenance agreement,which,in the view of economists,promotes a more competitive effect and provides a strong support for the establishment of safe harbor rules.Fifth,the screening mechanism carries out the core attributes of the safe harbor rules.The competition effect of resale price maintenance agreement still needs to use the principle of "structural" reasonable analysis judgment,competition effect and the relationship between market structure finally decided to the safe harbor rules of resale price maintenance agreements;Sixth,market forces are not only the means of mutual verification of the market structure,but also the precondition for the design of safe harbor rules.The further analysis of market structure can find the existence of market forces different from market dominance,which is the prerequisite for the application of safe harbor rules.The third part is the specific content of the Hong Kong rules.Resale price maintenance agreement,the specific content of the safe harbor rules based on the theory of three layers of bedding: first of all,this paper discusses the necessity,begins with the first paragraph,and then discusses the rationality and feasibility of,are designed for specific safety rules provides important guidance;Secondly,the specific content of the safe harbor rules has broken through and extended its traditional threshold or standard meaning,and constructed a set of review rules from the beginning to the end.Finally,it is influenced by Rosenberg's theory of proof responsibility,and introduces the idea of proof responsibility allocation in the design of safe harbor rules.The specific contents of the safe harbor rules are analyzed as follows: In the first stage,the safe harbor rules distinguish the resale price maintenance agreement from other vertical restrictive competition agreements;The second stage,if the plaintiff of evidential proof exists resale price maintenance agreement,the defendant need evidence to prove that participate in the main body of market structure,if higher than the specified threshold,is an illegal monopoly,otherwise,the applicable principle of "reasonable"(by the plaintiff to proof effect elements);If there are only other vertical restrictive competition agreements,the market structure of the participant is higher than the specified threshold,and the "reasonable principle" is applied.On the contrary,it is presumed to be legal and not examined.The third stage,if the market share is lower than the prescribed threshold behavior implemented a resale price maintenance agreement,or market share is above the threshold of the defendant carried out other longitudinal limit competition agreement act,the applicable principle of "reasonable" analysis model,the plaintiff need to evidence to prove that agreement has the effect of eliminate or restrict competition behavior,and the defendant has the right to defense and to apply the exemption clause.The fourth part,we use the case to test the safe harbor rules.Of course,to eliminate or restrict competition effect of resale price maintenance agreements,such as " Johnson Health Case",Moutai,Wuliangye,vertical monopoly case application safe harbor rules based on typical cases,and can be further validation rules and the feasibility and rationality of the design for the development of China's antitrust provides important enlightenment.