The Determination Of Justified Reasons For Price Discrimination In The Anti-monopoly Law

The price discrimination behavior regulated by anti-monopoly law refers to the unfair differential price treatment that the actor implements to the trading counterpart who should have equal rights,and such behavior usually damages the competition order or the rights and interests of consumers.The justifiable reason for price discrimination is to optimize the regulatory value of price discrimination,means some allowed regulatory exceptions,which have important institutional value.However,our country lacks specific norms and type guidance on the justifications of price discrimination,which also leads to the unclear recognition of justifications in practice to some certain extent.In particular,relying too much on the judgment of whether the trading conditions of the opposite parties are the same makes it impossible to implement the system value that should be undertaken by the defense of justifiable reason,and also makes the regulation of price discrimination blurred.Under the background that legislation tends to delete the restriction of “the same conditions” to the trading counterpart,the systematic value of justifiable cause is further enhanced.Several kinds of “absolute defenses” are put forward in the legislation of foreign countries,that is,the defense of cost reasons,response to competition and adaptation to changes in circumstances.And in judicial practice,the defenses of practical availability have been formed.Although there are some problems in foreign experience,such as the conflict of value brought by the change of legislative background and the lack of integration of practice and legislation,the main types of justifiable reasons for price discrimination still have reference value.Under the guidance of the legislative spirit of China's anti-monopoly law,in order to effectively protect the order of competition and the rights and interests of consumers,combined with the regulatory experience of foreign countries,in view of the justification of price discrimination,it is suggested to establish and implement three justification types,namely,cost justification,response to competition and changes in circumstances,and practical availability.Cost justification is applicable to price discrepancy resulting from cost differences in production,transportation and labor costs.The price difference behavior under the defense of “response to competition and change of circumstances” mainly refers to the price difference is the treatment difference caused by the adaptation to the market competition order or the change of key transaction factors such as the ability of the trading partner,which will not damagethe competition.The defense of practical availability is to identify the legitimacy of behavior from the perspective of consumers' practical access to rights and interests,which means that consumers can obtain preferential low prices in different prices equally and smoothly,without any obstacles to the realization of rights arising from different prices.This kind of classification can not only cover the beneficial experience of foreign countries,but also provide more clear justifications from the perspectives of business subjects,market competition and consumers.It is also conducive to the establishment of internal relations with the protection of legal interests in China's anti-monopoly law,and to ensure that the basic requirements of legitimacy are met.In addition,it is also necessary to combine the connotation of various types of justifications,grasping the origin of their respective justifications,and set up the basic standards in the identification work on this basis.In the process of type analysis,objectivity should be regarded as an important common standard,supplemented by specific judgment elements,so as to effectively improve the norms and unity of the determination of the justifiable reasons for price discrimination in judicial practice.