Introduction of the Draft Anti-monopoly Law
Hou Liyang
【关键词】Anti-monopoly law
【全文】
Introduction of the Draft Anti-monopoly Law
There are mainly four parts in the draft of Anti-monopoly law from a substantive point of view, which are prohibition of four kinds of monopoly conducts: monopoly agreements, abuse of dominant position, concentration and administrative monopoly. Besides, the Chapter 6 of the draft provides the constitution of anti-monopoly authority. This essay aims to introduce the four substantive parts of the draft in the following.
A. Monopoly agreements
a. Definition:
Monopoly agreements refer to any agreement, decision or concerted action among the undertakings with the purpose or effect of eliminating or restricting competition among undertakings.
An “undertaking” in this law refers to a legal person, other organization or natural person that engages in businesses of commodities. The scope of “commodity”, which shall include goods and service, needs further clarification, the most important of which is to make transparent the activities which do not fall into the jurisdiction of anti-monopoly law. According to the fourth paragraph of Article 8, the activities of issuing and distributing publications, at least, do not fall into this scope.
Here indicate two different agreements, decision and concerted action. Decision shall point to the evidence of existence of an agreement of such kind, whereas concerted action shall refer to a situation where there should be an agreement though evidence has not been found yet. The interpretation of concerted action will depends on the practices of anti-monopoly authority and the courts.
b. Exhausted examples of ‘agreements’:
The second paragraph of Article 8 lists 7 exhausted examples of monopoly agreements. It is difficult to understand the threshold of implementation for the reason of non-existence of specific explanations of each anti-competitive activity and no indication of “hardcore” anti-competitive activities. In addition, it is of surprise that there is no “others” clause in this paragraph, probably because of corruption of the Chinese version of the draft.
