Anti-monopoly Law Regulation Of Vertical Restriction

With the innovation of technology,format and business mode,the vertical relationship in market economy gradually presents complexity,diversity and concealment.Unlike horizontal monopoly behavior,the influence of vertical restraints on competition is often duality.Therefore,the anti monopoly law regulation of the behavior has become one of the core areas of concern in the theoretical and practical circles.Vertical restriction refers to the agreements,decisions or cooperative actions imposed by enterprises in different production and operation links and different market economic levels.The provisions of the current anti-monopoly law on vertical restraints are inherited and transplanted in the United States.The relevant provisions of the antitrust law and the EU competition law have a high degree of generality and large explanatory space.The requirement of legislation for vertical restriction behavior administrative law enforcement and judicial practice is hard to be satisfied by the existing regulations,so it is urgent to amend the relevant legal provisions.By analyzing the current situation of administrative enforcement and judicature regulated by the anti monopoly law of vertical restraints,there are still some difficulties in practice.First,there are obstacles in the application of the fourteenth clause and third clause provisions in the anti-monopoly law,resulting in the fact that the vertical non price restriction behavior is difficult to be investigated in accordance with the law;second,administrative law enforcement agencies and judicial organs have different opinions on the choice of vertical restraints.In practice,administrative law enforcement agencies usually only prove that the existence of vertical restraints objectively excludes restrictive competition.The judiciary is to examine the effect of "exclude and restrict competition" as a necessary condition for the identification of illegality.Analyzing the inconsistency of mode selection results in the result of "different cases of the same case" in practice;Third,the distribution of the burden of proof is not clear in the vertical restraints,resulting in randomness in practice;Fourth,the fifteenth exemption rule of the anti-monopoly law is too principled.It does not further elaborate the exemption restrictions on "not seriously restricting the relevant market competition" and "enabling consumers to share the benefits arising therefrom",which makes it difficult to apply this provision in practice.Based on the difficulties in the above practice and the development of China's market economy and competition policy,this paper puts forward some suggestions forimproving the anti-monopoly regulation system.First of all,we should make clear the analysis mode of vertical restraints under the premise of respecting the legislative objectives of the anti-monopoly law,and take "exclusion and restriction competition" as the components of the determination of the illegality of vertical restraints,and standardize the application of the double balanced mode.It also establishes the analysis mode of behavior typed processing.Secondly,introduces the inversion system of burden of proof,and rationally distributive the burden of proof on vertical restraints.In addition,it also consummate the relevant laws and regulations of the anti monopoly law,and sets the thirteenth clauses of the second monopoly agreements as the general clauses independently.It expands fourteenth types of vertical restraints.In addition,the "people's courts with jurisdiction" should be included in the main body of the applicable provisions.The wording of the fifteenth exemption clauses should be amended,and the "safe harbor" system should be introduced to scientifically and reasonably determine the exemption criteria for vertical restraints.