On the exemption system of anti monopoly law

The competition is the market economy development soul, monopoly is the inevitable product of market competition. Market competition and the resulting from development to a certain degree, must produce the monopoly monopoly, but largely in the competition have a great threat, the anti monopoly law will emerge as the times require. Anti monopoly law known as the "economic constitution", "free enterprise great charter", the main function is to protect fair competition, and against monopolies and restrictions on competition, so as to guarantee and promote the healthy development of the market economy, however not all monopolies are prohibited by the antitrust law, not all monopoly will bring the negative influence to the economy, some areas maintain appropriate monopoly, but optimization helps social resources, is conducive to the maintenance of social and public interests, so in the anti monopoly law, it is very necessary to study the system of exemption.

The application of anti-monopoly law exemption system concept

Anti monopoly exemption system, also known as the exemption system. In short, refers to a basic system, basic system in some areas is not suitable to the antimonopoly law on certain matters specifically, refers to a specific industry or in the field, the law allows the state of monopoly and monopoly exist on some specific protocol, although is the limit competition or joint or separate, a legal system of anti monopoly law shall not be prosecuted.It reflects the validity of anti monopoly law of human characteristics, but also reflects the basic features as a function of strong economic law. Anti monopoly exemption system is usually the result of interest measure, namely from the economic effect for the nature and effects of restrictive competition behaviors of interest comparison, in the "more" to exclude the application of anti-monopoly law prohibits. 'interest measure occupies an important position in the anti monopoly law, the restriction of competition can promote competition benefits(The positive effects)To exclude or restrict competition, and damage(Negative consequences)By contrast, the positive effect is greater than negative effect, anti monopoly law can to give the wrongdoer a way out, for the limited competition behavior to be excluded.

Except system applicable object of antimonopoly law

One, the natural monopoly industries

In some industries, such as railways, telecommunications, electricity, gas, natural gas, tap water, because of its high investment cost, facility layout is often large, once the operator has been put into operation, other operators will not want to invest in redundant construction, the operator first investment come very naturally obtain a monopoly or dominant position, these the industry known as the "natural monopoly industry". Properties of these industries decided not advocating free competition, otherwise it will cause unnecessary waste of economic resources, but in practice it is difficult to present the competition state. Clearly, restricting competition than free competition more sensible, desirable. So the law of its monopoly and restrict competition behavior exemption provisions."

Two, specific organizations and personnel system of exemption

Specific organizations such as trade unions, including consumer association;Specific personnel including freedom of occupation, doctors, teachers, lawyers. Because of the nature of occupation, states have anti monopoly law is not affected by the teacher, doctor, lawyer freedom of occupation behavior constraints. This is because, in these industries is not suitable to launch a full competition, can not be one-sided pursuit of economic interests, or not conducive to maintain a good quality of service, is not conducive to the formation of good occupation morality, will lead to social moral decay, damage the public interests of the society.

The system of exemption three, intellectual property

The exercise of intellectual property rights act exemptions to antitrust law, depends on the intellectual property itself has the exclusive, exclusive characteristics. The law of intellectual property rights are the owners of intellectual property right of intangible property, owners of rights conferred by law, not by the anti monopoly law of condemnation, unless to exercise the right behavior beyond the limits allowed, constituted the abuse of intellectual property rights. On the other hand, the anti monopoly law can not be clearly defined in law or statutory monopoly monopoly into the regulation. The legal monopoly is the state to the overall interests of society such as social security, public interests, social efficiency, in the law explicitly gives a market monopoly monopoly. Elements according to monopoly monopoly, the monopoly should be regulated by the anti monopoly law, but the consistency property law determines the anti-monopoly law can not bring them into the control of anti monopoly law, legislators should never be in a law declaring a legal monopoly, and at the same time another law announced the illegal. From the objective point of view, intellectual property and antitrust law is common, is to promote innovation and enhance consumer welfare.

Four, and beneficial to the people's livelihood is closely related to the industry exemption system

(a) the bank, insurance

America antitrust law implementing partial exemption to the bank and the insurance industry, "including...... A specific industry, financial services and insurance industry to enjoy legal immunity in different ranges." The antitrust laws prohibit the competing enterprise agreement fixed price.

(two) agriculture, forestry, fishery

Between operators in many countries permit the industry entered into agreements to restrict competition, and even some countries also set minimum protection price, or by the state to give price subsidies, or the countries directly involved in buying and selling activities. The most typical example is the European Union, the vast majority of the agricultural products are governed by the European Union, the highest price for them and the lowest price and agreed by the EU, the implementation of export subsidies.

Characteristics of exemption system

Diversity, legislative style

In the anti-monopoly law system, the system of exemption by various legislative style show. The anti-monopoly law legislation style except showing a diversity of characteristics, can be roughly divided into three types: mixed legislation, special legislation, regulations and other relevant laws. Of course, most countries are the forms used in combination, i.e. do principled regulations to exemption in antimonopoly law, and make specific provisions in other laws. (1) mixed legislation, namely the exemption clause in anti monopoly law. Germany, Korea and other countries and China's Taiwan region are typical of the legislative style. (2Special legislation, namely) formulation of a special anti monopoly exemption method. America is a typical country of the legislative style. (3Provisions in other laws), which is applied except for the provisions in other laws.

Two, the relative except for

The anti-monopoly law to the exception object is not complete, absolute immunity, immunity relative but there are conditions, the. Such as the laws of all the countries recognized electricity, railway, gas and other natural monopoly industry, generally allows its monopoly status, but not allowed to abuse the monopolistic position will harm the interests of consumers, hinder the market competition. Therefore, many countries have formulated the special industry regulations, the various aspects of their access to the market conditions, the price of the product, market regulations.

The anti-monopoly law significance

One, the anti-monopoly law exemption system has a positive role to play monopoly

Monopoly is a "double-edged sword", which affects the development of economy has two sides, both limit competition, property hinder economic development, also has the property of promoting economic development. Under the condition of monopoly, monopoly organization can be fixed over the monopoly price marginal cost of obtaining monopoly rent. In order to maintain the monopoly rent, monopoly organization will take all kinds of anti competitive means to prevent new competitors to enter the market, thus making the Pareto optimal allocation of resources can not be achieved. At the same time, because of the monopoly rent, monopoly organizations will lose the power of technical innovation, lack of internal management, and thus hinder technology progress of the society, from low efficiency and social welfare in economic activity. On the other hand, monopoly does not necessarily lead to low efficiency and waste. Monopoly does not cause waste of social wealth, but is conducive to the economic benefits of the whole society and the efficiency of resource allocation, conducive to the realization of technological progress and innovation.

Two, the anti-monopoly law to the substitution and complementary role for anti monopoly law

First of all, the exception is a kind of repair technology of antimonopoly law legislation. Due to the monopoly of the meaning is too broad, the world anti-monopoly legislation has failed to monopoly is an accurate definition. So in practice, the legislature every second, the monopoly is decomposed into several categories such as abuse of dominant market position, the conspiracy were defined. Even so, the legislature summary or abstract of some type in, still inevitably will be a legal monopoly and illegal monopoly together. So, we need legislators to take remedial measures will be included in the legal monopoly of some monopoly control system in the selected. The exemption system of anti-monopoly law in the form of special law clearly stipulates the legal monopoly should be protected, thus solving the anti-monopoly law with legal monopoly and illegal monopoly together problem. Secondly, from the dynamic point, can make up for the lack of the exemption system of anti-monopoly law in response to reality ability. Anti monopoly law once the formulation and implement, it has relative stability, however, economic relations are unsettled. Especially the mankind enters20Since the 20th century, science and technology change rapidly, so that the economic relationship has changed greatly. The changes of economic relations, as the superstructure of the law to make the corresponding adjustment. Although the adjustment can be taken to modify the anti-monopoly law out of the way, but this approach often affect the situation as a whole, as well as flexible exception. The exception system is an open system, it can keep the admission of new members, but does not affect the trend of the nature of the system and its basic value.

Construction of China's anti-monopoly law exemption system thinking

Make full use of his country's advanced legislative experience, combined with China's national conditions of advanced countries and regions have a long-term development of market economy, how to use the law to regulate the market economy, to play the market advantage, overcome many worthy of our reference market defect in this respect, in the application of Anti-monopoly law exemption system design is true. At the same time, it also has its own unique national conditions of our country, our country market economy is not perfect, the administrative monopoly power is strong, have not formed the scale economy and so on, in the design of antimonopoly law suitable exception system must consider the actual situation in the country, not blindly copy other country or the area. I think we should pay attention to the following aspects:

A, learning from other countries, a combination of their own reality, choose suitable exception system of the legal form of antimonopoly law suitable exception system.

The exception system of legal forms in front has been mentioned, there are three kinds of general:Anti monopoly laws and regulations of the fragment;Applicable law except single antimonopoly law;Exception provision of applicable antitrust law and other laws and regulations. Our country is making the antimonopoly law, in which should provide some basic exemption type. In addition, in the overall application of the antimonopoly law, only some special behavior can be exempted from industry or field, can be specified in the special law. In this way, the applicable provisions of the basic law of anti-monopoly law except in the overall immunity, and in the whole applicable exemption, according to the special law is superior to general law

The principle, application of special law provisions. This arrangement can make the anti monopoly law more concise, more coherent, also can make some industries special law more perfect, more execution.

Two, grasp the trend of legislation, based on national conditions, to reduce the scope of the exception object

(a), the strict distinction between administrative monopoly and administrative monopoly.

There are a lot of administrative monopoly, and as a policy monopoly exemption easily confusing. Therefore, in the legislation to strictly regulate the administrative monopoly, it can not be used as a policy monopoly exemption. The administrative monopoly is the result of a unified market fragmentation, destruction of free and fair competition order, the interests of consumers and social public interests ultimately damage, and the exemption system is the inevitable result of a health fair, orderly competition order of the market economy. We should grasp the difference between them, to separate its strict.

(two), in the natural monopoly areas, narrowing the scope of exemption.

Our country in the construction of anti-monopoly law exemption system, to achieve a reasonable balance between the interests of competing interests and maintain competition restriction. Therefore, except to the extent required must be appropriate, not too wide, play or will limit the normal function of the anti monopoly law. In fact, with the development of science and technology and the change of economic situation, the scope of exemption of anti-monopoly law enforcement practice has gradually narrowing trend. Our country should appropriate provisions of the exemption system, in order to achieve the purpose of the World Trade Organization on the principles and rules of competition. Especially in the public utilities should be appropriate to introduce competition, rather than blindly exemptions to antitrust law. Utilities, we mean that the postal, telecommunication, power supply, water supply, gas supply, heating and public transportation to provide products, services or business for the public sector. It is the development of productive forces to a certain stage, a product of human life and economic socialization, which is characterized in that the public interest and the different degrees of natural monopoly.

(three), given the intellectual property except suitable for use at the same time, to prohibit the abuse of rights.

Intellectual property is a legal monopoly, is generally exists as the exemption from the application of antimonopoly law. However, the intellectual property rights of exclusive right often makes its owner monopoly or dominant position in a particular market, restrict the competition in the market, in particular, has intellectual property rights in some cases may abuse their exclusive rights according to law, the improper exercise of intellectual property rights to illegal restriction the competition, which violate the antitrust law. Especially in the era of knowledge economy, intellectual property rights and the role in economic and social development in the increasingly important position, accordingly, the antitrust problem in the field of intellectual property rights will become increasingly prominent. In some countries or regions, on the one hand the law clearly stipulates that the intellectual property legal or proper exercise behavior belongs to the anti-monopoly law exception or exemption, on the other hand, the law also specifies that certain prohibited IP related anti competitive behaviour, and incorporated into the anti monopoly law regulate. We should use for reference.