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尽管反垄断法在很大程度上能够消减垄断行为给正常的竞争秩序所带来的巨大危害。但是，若不加区分的将任何垄断行为均加以限制，同样可能损及本国的发展。本文认为，反垄断法的豁免权为了保障本国公共利益，实现特定的经济产业政策应运而生的。它通过行政或司法的国家授权获致了合法性地位，或以类型豁免的方式存在，或以个案豁免而发挥协调作用。并且，随着反垄断法立法的发展，反垄断法的豁免权在司法适用中需要交叉使用合理原则与本身违法原则。一般而言，反垄断法豁免权在司法适用过程中首先需要将严重限制竞争行为或严重损及市场经济发展的行为排除于豁免权之外，再考虑其合理性。 Abstract: although the antitrust laws to a great extent, decreases the monopoly to the huge harm brought by the normal competition order. However, if indiscriminate will limit any monopoly, also could hurt the country's development. This paper argues that the antitrust laws immunity in order to protect the interests of its public and implement specific economic industrial policy arises at the historic moment. It by state authorized to achieve the legality of administrative or judicial status, or by type of existence, the manner of the release or in case immunity and play a coordinating role. And, with the development of anti-monopoly legislation, antitrust immunity in judicial application need to cross use reasonable principle and the itself illegal principle. Immunity in general, the antimonopoly law in the process of judicial application must first be severely restrict competition behavior or serious damage and excluded from the immunity of the development of market economy, to consider its rationality. Hundred years, the antitrust laws from scratch, has become the one of the most important legal system to modern market economy society. Throughout the antitrust legislation of all countries, the monopoly of basic attitude are very similar, adopt the summarizes the basic attitude of ban. However, with the rapid development of economic exchanges, the ata also appeared some legislation has not considered the beginning of the conflict, such as in certain public domain laissez-faire competition, may damage to their own public interest. Therefore, countries in the monopoly into forbidden content at the same time, also with the necessary immunity. This article chose the immunity of anti-monopoly law as the breakthrough point, will exist in immunity and detailed exploration of the antitrust law significance and its existing way, and provide two cents for the judicial practice. The concept of antitrust immunity Antitrust immunity refers to the violation of the anti-monopoly law regulation of specific subjects, a particular industry and enterprise, request permission to countries to facilitate, admit, methods such as the scope of rights illegal behavior out of the antimonopoly law. That is to say, the anti-monopoly law itself admitted to a certain behavior or specific areas of the existence of certain monopoly status and monopoly behavior for legal, shall be investigated for and sanctions from the antitrust laws. Like the law, the anti-monopoly law exemption also the anti-monopoly legal system and an important part in them. Its legal meaning is its basic principle and basic system in the law of the system into a small piece of free zone, in this area, economic freedom and economic democracy and effective competition relegated to a secondary position, abstract economy as a whole to become the main value orientation and the society as a whole benefits. In general, took a generalization about monopoly all countries and the exceptions allowed pattern is prohibited. Among them, the antitrust immunity exists in exception allowed legal norms, for example, intentions unified European antitrust legislation as prescribed in paragraph 1 of article 81 of the ec treaty Generalization can be regarded as the concentrated reflection of the basic attitude, but its under paragraph 3 of article 81, and immunity against the agreement made exceptions. The existence of antitrust immunity (1) antitrust immunity legal basis: safeguard the public interest Many established the antitrust laws in the world countries, mostly from its own actual situation, formulate the corresponding exemption system, to safeguard the country's overall public interest, enhance the country's comprehensive national strength, play a full role on the international stage. In general, the public interest refers to the main national country pursue benefit, right or benefits, reflect the country and the nation needs and interests of various kinds of interest groups. However, not all public interests can be a antitrust exemption of legal reasons. Immunity in anti-monopoly law public interests based on the following four categories: one is the country as a whole in this respect have economic interests; Secondly, the national security; The content of the three is a national political interests; Four is directly with the social moral, social stability there is a connection, such as banking, utilities, trade unions, free, small businesses, etc. To sum up, the antitrust laws immunity after the interests of the evaluation and the coordination between the equity and legal value goal, for more in need of legal protection of social public interests arises at the historic moment. (2) the economic basis of anti-monopoly exemption: implement industrial policy Anti-monopoly law is closely related to economic policy law field. It is the policy, is obvious. This means that the antitrust laws of immunity created must also be considered to industrial policy, specific target. Industrial policy is according to the requirements of the economic development of countries in different periods and the related industry's status and role of the specific target has the characteristics of periodic and variability, stability of law and anti-monopoly law pursues exist significant contradiction. Therefore, in order to timely unsettled target echo industrial policy, the law must take a series of non-discriminatory principle at odds to make room for industrial policy goals. On the one hand, with the exemption of antitrust legislation in the widespread is the national industrial policy targets reflected in the anti-monopoly law of institutional guarantee. Industrial structure policy to protect the industry can get the antitrust laws "extra" protection. Anti-monopoly law, on the other hand, using its legislation content directly express industrial policy targets. Industrial policy is to the same country economic development level and the content of the national economic strategy, its general every 10 years or a shorter period of time will make a major adjustment. In order to achieve the new industrial policy, relevant law also tend to have fixed. As compared with before, the telecom industry is enjoying immunity as policy changes are negative. (3) the legal basis for antitrust immunity: based on the national authorization As I said, anti-monopoly law to realize industry such protection is the most important means for different industries provide a wide variety of exemption. The universality of the exemption has weakened the antitrust laws and predictability, caused the antitrust laws regulating regional segmentation for different industries. Therefore, the antitrust laws of industrial policy of the limits of tolerance. Often needs certain behavior exemption state authorized administrative and judicial. In general, an enterprise based on the national authorization behavior of dominant market position at the same time, often also subsequently gained a dominant position within the meaning of anti-monopoly law, namely the national behavior exemption. For example, the method is based on "national behavior principle" with the federal and state of the different levels of exemption, some dominant market position of a state authorized to pay legal confirmation. In Europe, of course, such as refusing to "national exemption" of countries and regions, enterprise authorized by the state is still the anti-monopoly regulation object, cannot be engaged in prohibited by the anti-monopoly law of the monopoly. In the service market, the national authorization sexual market monopoly are reflected particularly hard to crack. Because in this area, not only have a lot of industry market is heavily regulated by the competent authority within countries, there is a wide range of national authorized to market monopoly or monopoly phenomenon, is also connected with the trade policy. Service market in a typical monopoly industries including bar, finance, insurance, etc., but these industries are with multilateral trade rules of services liberalization and gradual liberalization. The mode of existence of antitrust immunity (1) type immunity So-called type immunity, that is, directly give some restrict competition agreement of anti-monopoly legislation in the practice of legal status because of the type of immunity is often used in the implementation of the statutory requirement that automatically made way, therefore, the workload for easing the antitrust authority, reduce the enterprise from the administrative burden, improve efficiency has a significant effect on the implementation of anti-monopoly law. Such as the type of the eu special regulations in the form of a waiver is set, the exclusive sales, exclusive purchase four class types, selective sales and franchise exemptions for respective special immunity regulation. In general, as long as meet the requirements of anti-monopoly law more be typed at a specific form, can obtain exemption. But, after the formal requirements are, type of immunity is often considered the current situation of the development of domestic economy and the interests of the state policy. For example, the ec treaty, says that agricultural policy prior to the competition policy. So, in accordance with the eec agricultural policy agriculture cartel nature could have banned from restrictions on competition are excluded out of agreement. To the legislation of the most typical type waiver form is in the right be explicitly stipulated in the national anti-monopoly law directly. In Germany, Japan, Britain, the European Union, the Netherlands and other countries exist types in the system of anti-monopoly law exemption system. For our country, the type of antitrust law exemption mainly concentrated in electric power, railway, aviation and other utilities, intellectual property and state monopoly of the field. But with the refinement of the anti-monopoly law and anti-monopoly law implementing agencies accumulate experience, and the ability to ascend, type the scope of exemption is shrinking with the revision of national legislation, and antitrust law implementing agencies shall be strict interpretation. Existing exemption cases are the major types of exemption.#p#分页标题#e# But, as a limit competition agreement exemption system are widespread, the content of the type of immunity still have their own market. , therefore, the different types of exemptions will directly bring a certain range of the same market behavior under different evaluation of anti-monopoly law, conflict law conclusion can cause relevant enterprises. In addition, the type is also case exemption from the instability and flexible evaluation principle. Types, for example, the exemption attached withdraw authorized terms have the effect of anti-monopoly law implementing agencies in that (1) the exemption conditions has ceased to exist, (2) exemption agreement no effective competition, form the exemption revocation. More typically, in the positive and negative standard type of immunity is filled with uncertainty expression, and to leave space for anti-monopoly implementing agencies of different interpretations. In antimonopoly law value emphasis or policy orientation changes, type the scope of exemption changes. Type, therefore, the exemption does not mean absolute immunity, the competent authority of the bias will still affect types of exemption. (2) the case for exemption Case immunity refers to the relative to the types of exemption from: its not for the whole industry or field, which happens to be against type immunity deals outside of the individual facts. Case exemption does not automatically get, and should pass the ata the acknowledgment and licensing of the program. First of all, the case for exemption principle provision serious national differences in form and content. Comparison between the us and Europe case exemption system, the difference is obvious. The American case exemption system shows the characteristics of "the case of a standard". The standard case exemption does not exist the antitrust laws enacted law standard, relying instead on antitrust practice established the principle of "reasonable". Reasonable principle gives us judge to consider the specific case of details and all aspects of social rights. And the European Union's case immunity standards, clear written into the ec treaty. The item (3) of article 81 of the treaty the positive conditions of two exempt, is helpful to improve commodity production and circulation, or the technical or economic progress, at the same time make consumer fair share and interests; And two negative constraints: these restrictions is essential for the objective and the agreement shall not be made it possible for companies to eliminate competition in an important part of related products. Based on the eu competition law for the effectiveness of the eu member states, the eu competition legislation in many members are adopted and the eu are basically the same standard. However, eu standards of "progress", "important" abstract description, such as the eu standards in essence and the United States need standard anti-monopoly law enforcement agencies to consider broad factors is not for you. Therefore, no matter how huge case exemption principle presented in the form of difference, the value judgment that rely on their own flexible anti-monopoly implementing agencies is the essence of the same. Case exemption if the form of legislation, the implementation of standards and procedures differ in thousands ways, but from the perspective of the practice of major antitrust powers, exemption from its determinants for real case is system of anti-monopoly law regulation factors behind the value of goal orientation and policy guidance. America, for example, the case of immunity recognition, with the influence of economic theory, is conducive to improve the efficiency of the market competition is the true primary immunity standards, if does not conform to the standard, even if the agreement has any beneficial factors, basic can't be exempted. In the European Union, the European Union market integration and liberalization of commodity circulation is the most important goal, the eu competition law is also a real saving standards. The eu does not conform to the standard of exemption from space are compressed, for example, the most typical export cartel exemptions, has pulled out of the stage of the European Union antitrust legislation. But in our country, export cartel exemptions are thought to be beneficial to the interests of our country foreign trade need to release. At different stages of economic development in different countries, its value orientation and the different interests demand, the resulting implementation case exemption and standard master is different also. Antitrust immunity of judicial application As previously said, antitrust immunity to some extent can negate the significance of existence in the anti-monopoly law. In judicial practice, therefore, we must abide by the principle of reasonable and the itself illegal principle. Reasonable principles and the itself illegal principle is to understand the anti-monopoly legislation precise method for analyzing the meanings of the most important. They produced in the United States court in violation of the Sherman act the first article about limit competition agreement of judicial practice, and then was gradually extended to a broader range of anti-monopoly regulation and anti-monopoly law countries use. (1) reasonable principle Specific meaning is reasonable principle, in judging whether a particular behavior should be applicable antitrust immunity, not only by the behavior itself to decide, but must be comprehensive consideration of the specific conditions of the relevant market, behavior intention and behavior way, the consequences of the behavior factors such as before to judge whether the illegal. Reasonable principles adopted in favor of the court ruling to avoid mechanical and rigid at the same time, in the courts with easing restrictions on competition agreement, a variety of "reasonable" factors make charges become legal limit competition agreement. Of course, the principle of reasonable form didn't happen overnight. As the court according to article 1 of the Sherman act understanding is becoming more and more thorough, the standard oil company in 1911 in America, the judge white on behalf of the court for the first time explicitly put forward important principles of illegality judgment behavior - reasonable principle. According to this principle, the agreement and behavior when applicable antitrust laws shall use reasonable standards to explain, as opposed to a U.S. court in the United States v. Missouri transport association case and other cases as: the Sherman act condemned "any" in restraint of trade agreement. In 1918, the Chicago mercantile exchange, v. United States, the United States Supreme Court further detailed description of the principle of reasonable: "the legitimacy of the rules of an agreement or not according to its simple criteria to judge whether to restrict competition. Any trade agreement, any trade rules limit. Constraints and restrictions are the essence of the agreement and rules. The legitimacy of the real standard is that the restrictions only regulation and may therefore promote competition, or restrict or even destroy the competition. To determine this issue, the court usually must consider trading that limit applicable to the specific facts, limit the implementation of the situation before and after, the nature of restrictions and possible or reality, limit the consequences of history, is believed to be the ills of existence, and take specific reasons, the remedial measures to achieve the purpose and the results are all relevant factors. This is not because a good intentions will save an otherwise objectionable, or vice versa, but because the knowledge of the intention to help the court to explain the facts and know." 2, the itself illegal principle Itself illegal principle basic meaning is: some serious harm competition behavior has been identified as itself is illegal, as long as in the commercial activities in the behavior, can not consider other factors and determine its illegal. That is, if some applicable itself illegal principle, the plaintiff in the lawsuit don't need the intention of the defendant, the behavior of the specific ways and injury consequence, the court may also directly according to conclude that the illegal behavior itself, which greatly improve the judicial efficiency. Eliminated anti-monopoly law itself illegal principle, in large part and the uncertainty in the applicable, ruled out the parties hope to justify their behavior and attempt to evade responsibility, thus can effectively deter and curbing price cartel seriously restrict competition behavior. Apply itself illegal principle although simple, but also so appear arbitrary. Optional for itself illegal principle may interfere with the normal business activities, and damage the lawful rights and interests of the parties involved. Therefore, in order to make a trial activities more scientific, reasonable, the court has been trying to apply modern economic theory to antitrust problem analysis, they inevitably more chose the reasonable principles rather than itself illegal analysis method. of course, with the development of anti-monopoly legislation, reasonable principle and the itself illegal principle of conflict has not only confined to either/or, more often, when defining the limit competition agreement of illegality, need two principles cross use, from each director. At the same time, on the premise of cross use, scope of application of two principles there are changes in the size of the change. Immunity in general, the antimonopoly law in the process of judicial application must first be severely restrict competition behavior or serious damage and excluded from the immunity of the development of market economy, to consider its rationality. And reasonable principle for the application of the antitrust exemption system, must meet the following three conditions: conform to the social and public interests or the interests of the conflict of interests pursuit of higher level; For a range of effective competition can let; In line with the requirements of moderate scale economy.#p#分页标题#e# References: [1] weeks for. Anti-monopoly law studies [M], Beijing: China social sciences press, 2007 [2] cao soldier. Anti-monopoly law studies, from the system to the general theory [M]. Beijing: law press, 1996 [3] Shao Jiandong. Competition law, Beijing: China renmin university press [M], 2009 [4] Liu Ningyuan, mediocre. Cardiotonic card, etc., the international antitrust law [M]. Shanghai: Shanghai people's publishing house, 2002 edition [5] Kong Xiangjun. Anti-monopoly law principle, Beijing: China legal publishing house [M], 2001 [6] guo-hai li. The anti-monopoly law enforcement mechanisms research [M]. Beijing: China founder publishing house, 2006 [7] Huang Yong, Dong Ling. Anti-monopoly law classic case analysis [M]. Beijing: people's court press, 2002 [8] Wang Xiaoye. Competition law research [M]. Beijing: China legal publishing house, 1999 edition. |
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