| Vertical non-price restrictions and vertical price restrictions are both vertical restrictions.In one case,both types of behaviors may exist at the same time,both of which are important means for operators to achieve their goals.The concept of vertical non-price restrictions reveals the need to grasp the "vertical" subjective relationship,the "non-price" factor,and the "restriction" outcome.Vertical non-price restrictions have both features that are common to vertical price limits and have their own unique characteristics.Vertical non-price restrictions include traditional expressions such as geographical restrictions,customer restrictions,exclusive transactions,tying,etc.,as well as new forms of emerging industries such as intellectual property and the Internet in the digital economy,such as the use of algorithms and Internet platforms.Non-price restrictions,intellectual property licensing restrictions,etc.It should be noted that the vertical non-price limit studied in this paper refers only to the behavior within the scope of the monopoly agreement in the anti-monopoly system.Among them,the tying and exclusive transactions overlap with the abuse of market dominance.If the perpetrator has market dominance,The need to abuse the market dominance system for regulation is beyond the scope of this paper.The role of vertical non-price restrictions on competition has both advantages and disadvantages.It can effectively reduce and eliminate the phenomenon of “free-riding”,help domestic enterprises to explore foreign markets,improve market efficiency,reduce market costs,and at the same time may cause market entry barriers and reduce competition.The number of people may even consolidate,trigger vertical price restrictions,and achieve horizontal restrictions in disguise.A series of cases and problems in practice clearly show that vertical non-price restrictions will harm competition in certain circumstances,but China’s Anti-Monopoly Law does not make clear and specific provisions on vertical non-price restrictions.In theory,Article 4,paragraph 3,on the “the other monopoly agreement recognized by the anti-monopoly law enforcement agency ”,can be used as a legal basis for regulating vertical non-price restrictions,but this clause of exercising discretion is Naturally,it is subject to prudence,and how it is regulated is ambiguous,so it is basically not applicable.According to the purpose of the Anti-Monopoly Law,it is necessary to regulate it.Competition theory,efficiency theory,consumer rights protection theory,etc.provide an important theoretical basis for regulating vertical non-price restrictions.Based on the dual impact of vertical non-price restrictions on competition,it is necessary to adopt a prudent and tolerant policy for regulation and apply reasonable analysis principles.When analyzing the constituent elements,we must grasp the subject,subjectivity,object,objective,and damage results.The specific form should be analyzed one by one for its identification.If the behavior is found to be illegal,the entity must bear civil,administrative and criminal responsibilities.The return of reasonable analysis principles in the development of American jurisprudence and the exception exemption model of EU competition law provide certain reference and enlightenment for China.At present,China has no specific regulations on the regulation of vertical non-price restrictions at the legislative level.There are difficulties in the identification of illegality,the system of exemption is also empty,the distribution of burden of proof in the judicial process is unfair,and the anti-monopoly law enforcement agencies are in a transitional period.In order to change the status quo and improve the inadequacies,combined with the revision of China’s Anti-Monopoly Law,a specific vertical non-price restriction rule system should be constructed in China.The specific contents include:(1)Article 14 of the current Anti-Monopoly Law The two vertical price restriction clauses are combined in the same clause as Article 14,paragraph 1;(2)the provision of vertical non-price restrictions as Article 14,paragraph 2;(3)the establishment of the bottom clause(4)Refine the illegality determination,and issue supporting rules or guidelines;(5)Increase the enforceability of the exemption system,activate the exemption procedure,and unify the exemption criteria;(6)Reasonably allocate the burden of proof to the defendant.Self-acting does not endanger competition or should apply for exemptions for proof;(7)Improve the professionalism of law enforcement teams and sink law enforcement functions and resources. |
