Research On The Private Law Effect Of Monopoly Acts

Monopolistic acts can be divided into economic monopolistic acts and administrative monopolistic acts.In the process of anti-monopoly cases,the judgment of the private law effect of monopoly acts is an inescapable issue.China’s current law does not provide any direct provisions for the private law validity of monopoly acts.Therefore,Article 153 of Civil Code and Article 75 of the Administrative Procedure Law are often used as the basis for judging the private law effect of economic monopoly acts and administrative monopoly acts.However,on the one hand,Article153 of the Civil Code,as a leading provision,cannot be directly invoked to reach a conclusion on the validity,but the judge still needs to analyze it in conjunction with the specific articles of the Antitrust;aw and the whole system of legal acts` validity.On the other hand,the application of Article 75 of the Administrative Procedure Law also requires judges to define what is "significant and obvious".Through combing related cases,it is found that there are the following disputes in the judicial practice of the validity determination of private law of monopoly act:first,whether the mandatory norm violated by monopoly act is the mandatory norm of validity or the mandatory norm of management;second,whether the private law effect of the monopoly is only valid or invalid;and thirdly,whether absolute invalidity,relative invalidity,total invalidity and partial invalidity can be used to determine the private law effect of the monopoly.In order to reconcile the above disputes,firstly,it is necessary to determine the benchmarks for evaluating the private law effectiveness of monopolistic acts;secondly,it is necessary to clarify the types of effect which can be used to evaluate the effect of private law of monopoly acts.At present,the dichotomy of compulsory norms differentiated by effective mandatory norms and regulatory mandatory norms is controversial.It is a more reasonable judgment way to determine whether the monopoly act is invalid by analyzing the normative purpose and weighing the interests in individual cases.Due to the characteristics of the frequent occurrence of new forms of monopolistic behavior,it is necessary to take the public order and good custom clause as the channel for lower level laws such as regulations and local laws to intervene in the effectiveness evaluation system.However,the application of the clause requires a review of the legitimacy of purpose and necessity of invalidity with the competition order as the content.When identifying the validity of administrative monopoly agreement in private law,it is necessary to return to the determination of the effectiveness of administrative agreements,which triggers the concurrence between Article 75 of the Administrative Procedure Law and Article 153 of the Civil Code.There is homogeneity between violation of mandatory norm,public order and good custom clause and major and obvious violation of law.The situation of administrative agreement violating mandatory norm clause or public order and good custom can be classified as major and obvious violation of law.And the agreement signed by the beneficiary operator of an administrative monopoly shall be linked to the previous administrative monopoly due to the nature of its monopolistic behavior and the regulatory purpose of regulating the administrative monopoly.By analyzing the effectiveness types of various legal acts and combining with the domestic and foreign research results on the effectiveness of private law of monopoly acts,this paper concludes that four types of validity can be used to determine the private law validity of monopoly acts,including invalid,partially invalid,absolutely invalid and relatively invalid.Among them,the invalid patterns include total invalid,partial invalid,absolute invalid and relative invalid.However,the private law validity of a specific monopoly act should be determined by examining the purpose of the norms and weighing the interests of each case,taking into account the conditions of application of the validity types of legal acts.