| The so-called Resale Price Maintenance has also been referred to as vertical price restrictions,maintaining resale prices,etc.One of the most authoritative scholars in the field of antitrust,Xiaoye Wang,defines the resale price maintenance as follows."Resale price maintenance refers to the supplier's provision of the price of resale goods by wholesalers,including fixed prices,restrictions on minimum or maximum sales prices,etc." In essence,maintaining the resale price is a kind of coordinated joint behavior with a limited price.Its core is price monopoly,that is,price capping,so maintaining resale prices in the United States is also known as "Vertical Price Fixing." In EU competition law,there is not even a concept of resale price maintenance.The Operating Treaty,the Guidelines on Vertical Restrictions,and the Regulations on Block Exemptions for Vertical Restrictions Agreements maintain the resale price as a "black list",which regulates a type of vertical monopoly agreement that prohibits exemptions.Resale price maintenance,as a typical form of vertical monopoly,is a business model commonly used by upstream operators in the current distribution system.It is widely used in automobiles,milk powder,liquor,household appliances and other industries.The soul of the market lies in freedom and fairness,and the foundation of the market mechanism lies in competition.Since the Third Plenary Session of the Eighteenth Central Committee of the Party first proposed "Let the market play a decisive role in the allocation of resources",the construction of a modern economic system has become China's new The strategic goal of the development of the times,the regulation of resale price maintenance needs to be guided by the spirit of competition policy,and its impact on market competition must be fully weighed before reasonable regulation can be made from multiple dimensions such as legislation,law enforcement and justice.As far as the current regulatory status of China's resale prices is concerned,it is currently divided on its own principles of illegality and reasonableness.This has led toserious opposition to the choice of the two principles in the academic community.The mainstream academic view believes that a defensible option should be chosen.The principle of presumption of violation of law,however,as the disadvantages of the principle of presumption of violation of law have gradually become apparent in recent years,more and more scholars have begun to turn their attention to the principle of rationality.Not only is there a dispute in the academic world,but the differences in the practical world also make the idea of this model more confused.Law enforcement agencies generally recognize the resale price maintenance behavior based on their own illegal principles,while the judiciary analyzes whether the behavior itself has the effect of restricting and eliminating competition.The principle of reasonableness is used to judge its nature,so that the same act gets completely different legal evaluations at different stages,which greatly weakens the authority and fairness and standardization of law enforcement and judicial organs.The existing cases in China also show that the different interpretations of the resale price maintenance agreement by the judicial and law enforcement agencies have led to huge disputes over the application of the law,and have been widely criticized by the theoretical and practical circles in recent years.The “Hainan Yutai Company Price Monopoly Case”,as another typical case of the vertical monopoly agreement after the “Johnson and Johnson case”,has been controversial since the second trial on December 11,2017.The sales contract signed between Yutai Company and the distributor stipulated that the price for reselling fish feed clothing by the distributor to a third party should be subject to Yutai's guidance price.The position of the law enforcement agencies and judicial authorities on whether the contract constitutes a resale price maintenance agreement the above differences.However,this case is special compared with other vertical price restriction cases.The court of second instance broke the thinking of the judicial organs applying the reasonable principle,and demonstrated the rationality of the law enforcement agency's processing results through its own illegal principles,which overturned the judgment of the first instance.The above differences are essentially due to the ambiguity of the text of theAntimonopoly Law,the principle is too strong,the operation guidance is unclear,and various sectors of the society have different understandings of Articles 13,14,and 15 of the Antimonopoly Law.Similarly,the judiciary and law enforcement agencies have different opinions on the determination of violations in cases of the same nature.Similarly,there is no consensus in the academic circles on the rules for determining violations of resale price maintenance behavior.Therefore,in the current context,it is important to conduct further research on the rules for determining violations of the resale price maintenance behavior,and to unify the standards.To this end,the author has reorganized the resale prices in the United States and the European Union,two major developed countries under the rule of law,to maintain the historical evolution of regulation.Based on the basic economic theory of the Harvard School,the Chicago School,and the post-Chicago School,they fully weighed the plus and minus of resale price maintenance.On the premise of competitive effects,we introduce reasonable principles into our analysis model,refine and improve the specific standards for reasonable analysis,and then try to propose and improve relevant provisions of the Antitrust Law,supplemented by supporting guidelines and Detailed rules,and finally set up a set of specific and complete,operable resale price maintenance regulation system.In summary,China's economic development can only "follow the trend," not the "antiancient way." In regard to the illegal identification of the maintenance of resale prices,the homeopathy is to design the system,adhere to the international academic vision,adhere to the comparative research method,and take full advantage of the advanced experience of the United States and European Union to select the most suitable basic principles for China,taking into account Fair competition and freedom of competition allow the positive effects of resale price maintenance to be brought into full play under the regulation and guidance of competition policies.This is the common direction and specific responsibilities of the entire competitive community. |
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