| At present,the extraterritorial application of anti-monopoly law often occurs in various countries,and the competent authorities compete to exercise jurisdiction over the same extraterritorial monopoly behavior,which leads to the increasingly serious conflict of extraterritorial application of anti-monopoly law.For example,the Ministry of Commerce's Announcement No.46 of 2014,issued by the Anti-monopoly Bureau of the Ministry of Commerce in 2014,prohibits the concentration of undertakings in the establishment of network centers by A.P.M?ller-Maersk A/S,Mediterranean Shipping Company S.A.and CMA CGM S.A.On the contrary,both the European Commission and the Federal Maritime Commission of the United States have agreed to approve the application.Therefore,China's ban on the declaration will directly lead to the failure of the alliance plan to continue,which shows that the conflict of extraterritorial application of anti-monopoly law will have serious consequences.Therefore,starting from the maintenance of China's competitive market,this paper aims to find out the criteria for China to exercise its extraterritorial jurisdiction by using the China's Anti-monopoly Law and the solutions to the conflicts between China's extraterritorial application of the Anti-monopoly Law and other countries.In the first chapter,by discussing the basic theory of the extraterritorial application of the China's Anti-monopoly Law,the author analyses the meaning and scope of the extraterritorial application of the China's Anti-monopoly Law,and finds that the extraterritorial application mainly includes three aspects: first,the monopoly occurs abroad;second,the consequences of monopolistic acts lead to the impact of a country's domestic competitive market;third,the Anti-monopoly Law is not applicable to Chinese enterprises which engage in restrictive competition activities but have no effect on China.In addition,combined with Article 3 of China's Anti-monopoly Law and the anti-monopoly legal system,it is found that the scope of extraterritorial application of regulation mainly includes three kinds of monopoly behaviors: Monopoly Agreement,Concentration of Undertakings and Abuse of Market Dominance.Moreover,it combs the historical evolution of the extraterritorial application system of the Anti-monopoly Law,including the study of the emergence and development of the extraterritorial application system of the Anti-monopoly Law and the extraterritorial application system of China's Anti-monopoly Law.It is found that after the application of the "Effect Principle" in the United States opened the chapter of Extraterritorial Application of the Antitrust Law,the influence of extraterritorial application began to spread to other countries,and the emergence of the extraterritorial application system of China's anti-monopoly law is one of its consequences.The second chapter mainly analyses the standard of extraterritorial application of China's Anti-monopoly Law.Firstly,this paper studies the current situation of the standard of extraterritorial application of the Anti-monopoly Law of China,and analyses the practical application of the standard of extraterritorial application of the Anti-monopoly Law in the regulation of Monopoly Agreements,Concentration of Undertakings and Abuse of Market Dominance by means of case analysis.It finds that the standard of Extraterritorial Application of China's Anti-monopoly Law is not clear.It is mainly because of the different evaluation attitudes of the competent authorities on whether monopolistic behavior has "exclusion and restriction effects" and thecompetent authorities have different interpretations of "exclusion and restriction effects" so that our country is confronted with the double dilemma of ambiguous legislation on extraterritorial application standards of the Anti-monopoly Law and the failure to form a unified practice mode.Secondly,this paper analyses the connotation of the extraterritorial application standard of the Anti-monopoly Law of our country.Firstly,by studying the legal system of anti-monopoly and the restrictions of supporting systems,it is found that there are different understandings of the extraterritorial application standard of the Anti-monopoly Law on the legislative layer in the aspects of monopoly agreement,abuse of market dominant position,and concentration of undertakings.In cases of Abuse of Market Dominance,the Anti-Monopoly Law shall apply if the operators with market dominance "have no justification" to implement such actions as "controlling commodity prices,quantities or other trading conditions" which can hinder or affect the entry of other operators into the relevant market;In the case of Monopoly Agreement,if the Monopoly Agreement is not conducive to safeguarding the legitimate interests of foreign trade and economy,and can not improve efficiency and protect public interests,resulting in serious restrictions on market competition,the Anti-monopoly Law shall apply if there is no interest for consumers.However,in the case of Concentration of Undertakings,the Anti-monopoly Law shall be applied to those cases that meet the declaration requirements,and exclude the jurisdiction of simple cases.Secondly,through judicial practice,it finds that the standard of extraterritorial application of the Anti-monopoly Law is supplemented by the People's Court's reasoning of "exclusion and restriction of influence".Although the jurisdiction of the People's Court in anti-monopoly cases can not be fully understood as the extraterritorial application of the Anti-monopoly Law,the People's Court's interpretation of "exclusion and restriction of influence" in the reasoning process of judgment is acceptable as a reference to clarify the standards of extraterritorial application of the Anti-monopoly Law.It is thus found that the criteria for extraterritorial application of the Anti-monopoly Law can be supplemented by thefollowing conditions: the Anti-monopoly Law applies to monopolistic acts that cause "significant,substantial and reasonably predictable" effects on domestic competitive markets and actual losses existed.Thirdly,based on the late emergence and development of China's Anti-monopoly Law,many theories of extraterritorial application of Anti-monopoly Law have been formed in the world.The legislation and practice of extraterritorial application of China's Anti-monopoly Law are inevitably related to these theories.Therefore,through the analysis of the traditional theory of extraterritorial application,the article finds that the extraterritorial application of the Anti-monopoly Law can be carried out if it conforms to the Principles of Objective Territoriality,Single Economic Entity Principles and Effect Principles.At the same time,in order to further improve the standards of extraterritorial application of the Anti-monopoly Law,the paper discusses the special provisions made by the United States in comparison with those made by our country.Combining with the excellent experience of the United States,it is found that while applying the above-mentioned theories,we should formulate specific inspection standards for "excluding and restricting influence"(such as "significant,substantial,reasonably predictable")and apply the principle of international comity.Chapter three mainly analyses the conflict resolution of the extraterritorial application of China's Anti-monopoly Law.This chapter first analyses the reasons for the conflict of the extraterritorial application of anti-monopoly law,which mainly including the differences of the opinions of anti-monopoly law enforcement agencies and the extensive application of the extraterritorial application of anti-monopoly law.Secondly,the article seeks for the solution of conflicts in the field of international comity and international cooperation.In the part of international comity,it mainly analyses the role of international comity principle in conflict resolution,the limitation of international comity principle in judicial practice,and the reference significance of international comity principle in solving the conflict of extraterritorial application of Anti-monopoly Law.In the part of international cooperation,the article mainly startsfrom the bilateral cooperation,regional cooperation and multilateral cooperation of our country,and analyses the ways and contents of our country's international cooperation.It finds that there are two limitations in the way of our country's international cooperation: first,there are limitations in the effectiveness of the results of bilateral cooperation;second,there is a lack of application of regional cooperation and multilateral cooperation.There are also two limitations in the content of international cooperation: first,the scope of cooperation is not comprehensive;second,there is a lack of practical operability.Finally,by comparing the international cooperation between the European Union and the United States,the paper seeks the excellent experience worth learning from the way and content of cooperation.Chapter four puts forward some suggestions on the standards of extraterritorial application and conflict resolution of the Anti-monopoly Law,and analyses each suggestion from the perspective of rationality and feasibility.Firstly,the suggestions for perfecting the standards of extraterritorial application of the Anti-monopoly Law include: unifying the relevant legislation of extraterritorial application standards of the Anti-monopoly Law,giving full play to the guiding role of typical cases for extraterritorial application standards,and adding restrictive factors to the standards of extraterritorial application of the Anti-monopoly Law.Secondly,the suggestions for conflict resolution in the extraterritorial application of the Anti-monopoly Law include the rational use of the principle of international comity,the substitution of "agreement" for "memorandum of understanding",and actively participate in regional and multilateral cooperation. |
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