Research on the Rational Principle of Antitrust Law

Author: Li Zhongbin
Publisher:
Publishing Date: 2005-10-01
Features: The book is divided into eight chapters: Chapter 1: General Definition of the Rule of Reasonableness. By revealing the substantive connotation of the rule of reasonableness in the United States, it defines the rule of reasonableness and its characteristics. It examines the origin of U.S. antitrust law, the enactment of the Sherman Act, and the emergence of the rule of reasonableness and the per se rule, concluding that the rule of reasonableness was largely a result of the uncertainty of the Sherman Act. The rule of reasonableness combines statutory and common law. It is a correction of "absolute illegality" and "literal interpretation." Through an examination of the antitrust laws of major countries and regions such as the European Community, it confirms that the rule of reasonableness is not only a common law principle in the United States but also a fundamental principle of antitrust laws worldwide. The exemption provisions in the antitrust laws of civil law countries, like the per se rule, are merely derivative systems of the rule of reasonableness.
Chapter 2: Intellectual Origins, Related Theories, and Justification of the Rule of Reasonableness. This chapter discusses that the rule of reasonableness originates from the common law and equity law traditions of England. As early as 1711, in the case of Mitchell v. Reynolds, the early seeds of the rule of reasonableness were sown. As a legal principle, it emerged from the transformation of sociological legal thought since the mid-19th century. It confirms that the rule of reasonableness is the result of the collision between traditional common law thought and the holistic concepts of economic and social public interest, as well as the idea of interest balancing from the sociological school of law in the mid-19th to the mid-20th century. It examines the thoughts of renowned judges such as Beckham and White on the rule of reasonableness. It confirms that theories such as "effective competition" have enriched and refined the rule of reasonableness. Through an analysis of the relationship between the rule of reasonableness and the values of antitrust law, such as freedom, fairness, efficiency, overall economy, and social public interest, it indicates that the rule of reasonableness is the legal reflection of the theory of "effective competition," the pursuit of the ultimate goal of maintaining social overall interests, the natural logic of the duality and relativity of monopoly, and the inevitable path toward "refined jurisprudence." From the perspective of value rationality, which acknowledges the purpose-driven requirements based on human basic living conditions and needs, and technical rationality, which involves the reasonable calculation of effective means to achieve predetermined goals, it attempts to confirm the universality and rationality of the rule of reasonableness, thereby validating its justification as the core principle of antitrust law.
Chapter 3: Basic Issues of the Rational Analysis of Substantive Systems. Before entering into the substantive system analysis, the author attempts to address some basic issues related to the rational analysis of substantive systems in this chapter. It discusses the standards of monopoly and restrictive practices, aiming to establish the entire antitrust law system on the basis of effective competition and the pursuit of social public interest. It argues that antitrust law should be based on incomplete competition and the realities of the market to establish reasonable substantive control systems. It points out the general elements of the constitutive requirements for the illegality of antitrust acts, the analytical elements, the analytical approach, and the steps. From a technical perspective, it constructs the content of rational analysis, laying a theoretical and legal technical foundation for the rational analysis of substantive systems.
Chapter 4: Rational Analysis of Substantive Systems (I) — On the Use of Market Dominance. The legal control of abusive use of market dominance is an important part of the antitrust law system. This chapter analyzes the irrationality of traditional antitrust law's control system for abusive use of market dominance, elaborates on the practical justification of the rule of reasonableness in the control of abusive use of market dominance, and attempts to define the definition of abusive behavior and construct substantive standards for abuse. The latter part of this chapter provides representative examples of the rational analysis of abusive use of market dominance.
Chapter 5: Rational Analysis of Substantive Systems (II) — On Agreement Restrictive Competition. Agreement restrictive competition is a frequently occurring monopolistic behavior. This chapter provides an overview of agreement restrictive competition, analyzing its definition, characteristics, types of behavior, and the market harms it generates. It presents the traditional economic and legal theories on the prohibition of agreement restrictive competition, as well as the reevaluation of modern economics and law on such behavior, proposing a reasonable control system for agreement restrictive competition. The latter part of this chapter lists the rational analysis of agreement restrictive behavior.
Chapter 6: Rational Analysis of Substantive Systems (III) — On Business Mergers. This chapter analyzes the general theory and practice of business mergers, confirming the role of the rule of reasonableness in merger control. It points out that the legal control of business merger behavior lies in the reasonable evaluation of its positive and negative effects, and the variation of this standard in law is reflected in the strictness and leniency of merger control.
Chapter 7: Rational Analysis of Substantive Systems (IV) — On Administrative Monopoly. Administrative monopoly is the most serious restrictive competition behavior in the real market of China. The author believes it should be included in China's antitrust law. If the view that administrative monopoly is a direct manifestation of government intervention in the economy is correct in a broad sense, then the restriction on competition caused by administrative monopoly is closely related to the restriction on competition caused by government intervention in the economy. To maintain the overall economy and social public interest, it is necessary for the state to implement macro-control within certain limits and exercise administrative intervention in accordance with the law. However, the line between administrative monopoly and legitimate state intervention should be distinguished. Therefore, when formulating China's administrative monopoly control system, the author advocates distinguishing between legal and illegal administrative monopoly. This section discusses the boundary between administrative monopoly and legitimate state intervention from the perspective of market failure and transaction cost theory. It points out that maintaining social public interest and the overall economy remains the core standard for judging the abuse of administrative monopoly.
Chapter 8: The Rule of Reasonableness and China's Antitrust Legislation. This chapter is the concluding part of the book. After the analysis in the previous sections, it confirms that the rule of reasonableness is a fundamental principle of antitrust law. It points out that the rule of reasonableness helps overcome the uncertainty of China's antitrust statutory system and clarifies the vague understanding of antitrust law. It argues that the rule of reasonableness should become the "supreme principle" of China's antitrust law. The latter part of this chapter discusses China's competition and antitrust legal system and some related basic issues in formulating China's antitrust law, in line with the spirit and essence of the rule of reasonableness.