Any operator who participates in market competition, regardless of economic strength or market share, may become the subject of unfair competition, and the competitive relationship formed between them is the relationship adjusted by unfair competition law. However, anti-monopoly law and restrictive competition law often rely on market dominance or trading dominance to adjust the unequal competitive relationship between operators with strong economic strength and large market share and weak operators. To some extent, the cases of anti-unfair competition law are more for famous brand enterprises and large enterprises, while the anti-monopoly law embodies the protection of small and medium-sized enterprises.
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For those acts of unfair competition, those acts of monopoly, the laws of various countries have a clear definition. In a narrow sense, unfair competition behavior includes: the behavior of trading by deception, such as the operator selling products by means of counterfeiting and imitation; Defamation of competitors, such as defaming and belittling competitors' business reputation and commodity reputation, hindering their normal business activities and seeking illegal interests for themselves; Commercial bribery, such as buying employees or agents of customers and staff of relevant government departments by improper means to obtain trading opportunities for themselves; Infringement of trade secrets, such as improperly obtaining, disclosing or using other people's trade secrets; Do false or misleading advertising's behavior; Grand prize sales behavior; Create difficulties, hinder the normal operation of competitors, and so on. These are all acts of unfair competition in the traditional sense, which are generally recognized by all countries in the world and included in the anti-unfair competition law. Anti-monopoly law includes monopoly and restriction of competition. Typical monopolistic behaviors include: monopoly enterprises abuse economic advantages; Merger for the purpose of monopoly; Holding shares, that is, one enterprise improperly occupies the shares or capital shares of another enterprise, and also includes two enterprises occupying each other's shares or capital shares; Exclusive transaction, that is, the manufacturer of a specific product or series of products only allows its distributor to distribute one of its products, but not the products of other competitors of the same kind; Cross-appointment of directors in different enterprises. Typical acts of restricting competition include: restricting resale price, that is, when a production enterprise provides products to wholesalers or retailers, it requires them to sell products at a limited price; Differential treatment, that is, enterprises give obvious favorable or unfavorable differential treatment to the prices of goods or services or other trading conditions of the same transaction object without justifiable reasons, and the most common differential treatment is price discrimination; Predatory pricing, that is, operators sell products at a price lower than the cost in a certain market or space in order to crush competitors; Tying or attaching unreasonable trading conditions, that is, when the operator provides goods or services against the wishes of the counterparty, he uses his economic advantage to sell other goods or services, or makes unreasonable restrictions on the sales area or sales target of the goods; Compulsory trading, that is, operators use inducements, coercion or other unfair trading means to induce other traders to engage in trading behaviors that damage competition, mainly including making others trade with themselves and making others not trade with competitors; Arrange transactions between others. Hinder transactions between others; Joint behavior, that is, two or more business operators jointly determine the price of goods or services by means of contracts or agreements, or restrict the quantity of production and sales, production technical standards, sales areas or sales targets of goods, thus harming competitors.
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As early as 1987, China began to formulate anti-monopoly law and anti-unfair competition law as laws, but only anti-unfair competition law was promulgated in 1993. At that time, two basic factors were mainly considered: first, although unfair competition behaviors and restrictive competition behaviors appeared constantly at that time, the typical monopolistic behaviors regulated by competition legislation in various countries were not fully displayed in China, and there was no urgency of antitrust. Second, the prevalence of administrative monopoly in China is manifested in local protectionism and trade protectionism, and administrative privilege has become the fetter of the promulgation of anti-monopoly law.
However, since the establishment of the market economy system, China has put the anti-monopoly issue on the agenda and started to adopt a series of policies to cultivate the market environment and encourage fair competition. Especially in the past year or two, six state-owned enterprises and industries, such as telecommunications, postal services, finance, electric power, railway transportation and export, which used to be called "only one company, no branch", have been split and reorganized one after another, and competition mechanism has been introduced, so the "iceberg" of state-owned enterprise monopoly is quietly melting away.
In recent years, a series of events at home and abroad have accelerated the drafting of anti-monopoly law by relevant departments. The case that the US Department of Justice sued Microsoft for monopolizing the market had a great influence in China, and the "price alliance" of nine domestic home appliance companies suspected of monopolizing in disguised form was also criticized by public opinion. Under the background of China's entry into WTO, there is an urgent need for an anti-monopoly law to prevent foreign capital from monopolizing the domestic market by taking advantage of technology and economy, and to protect effective competition in the domestic market.
But objectively speaking, monopoly has both advantages and disadvantages. As a market mechanism, monopoly plays an active role in improving the efficiency of resource allocation. First of all, we can save market transaction costs through diversification; Secondly, it provides power and material basis for the sustainable development of technology; Third, it has scale effect. Especially in China, as a developing country, centralized management of small and medium-sized enterprises is beneficial to economic development. Therefore, experts suggest that China's anti-monopoly law should be between severe and moderate. It can not only avoid hurting efficient enterprises and causing excessive competition in the market because of strictness, but also avoid conniving and prohibiting certain restrictive behaviors and reducing market competition because of gentleness. Our anti-monopoly law will only prohibit the abuse of monopoly position, not the monopoly country itself. If the growth process of monopoly enterprises is legal in itself, then enterprises will not be condemned for gaining market power. If monopoly enterprises commit illegal acts and restrict market competition, the anti-monopoly law will be hit.
References:
Research on Competition Law, edited by Dai Kuisheng, Shao Jiandong and Chen Lihu, China Encyclopedia Publishing House, 1993.
Lecture on Anti-unfair Competition Law, edited by Huang Qinnan, Reform Press, 1995.
Theory and Practice of Modern Competition Law, edited by Legal Department of State Administration for Industry and Commerce, Law Press, 1993.
Research on Anti-monopoly Law, written by Cao Bingbing, Law Press, 1996.
Introduction to Anti-Unfair Competition Law, edited by Wang, China Procuratorate Press, 1994.
Abstract: Anti-unfair competition law and anti-monopoly law are both laws to adjust the relationship between market competition. They are closely related, but there are also differences in legislative ideas, adjustment angles and adjustment relations. China's anti-monopoly law should adopt behaviorism standards between severity and gentleness, not against monopoly itself, but only against the abuse of monopoly privileges.
Key words: competition law, anti-unfair competition law, anti-monopoly law, monopoly, restrictive competition behavior, competition mechanism
Before the reform and opening up, under the planned economy system, enterprises were only tools to implement mandatory plans, and their behavior was determined by the state plan. There was no competition among enterprises. Since the reform and opening up, especially in recent years, with the diversification of market subjects and the independence of economic interests, fierce competition among market subjects for their own interests is inevitable. People gradually realize that competition is the most basic operating mechanism of market economy, which generally affects almost all economic fields and links.
In the face of fierce market competition, operators will adopt various means to participate in market competition in order to survive and develop themselves in the market. The role of competition mechanism in economic development is twofold. On the one hand, market competition gives pressure and motivation to operators and promotes the improvement of production technology and social and economic development; On the other hand, the unfair monopoly, competition restriction and unfair competition of operators not only harm the legitimate interests of their competitors and consumers, but also lead to the chaos of the whole market order and hinder economic development and technological progress. Therefore, all countries in the world attach great importance to standardizing and guiding the competition mechanism in the form of law, and play its positive role with the help of national coercion.
one
The legal norms used by the state to adjust competition relations are called competition law. The competition law includes two parts, one is the anti-unfair competition law, and the other is the anti-monopoly law. After more than one hundred years' development, the model of competition legislation in various countries has been basically finalized. Due to different social systems and legislative traditions in different countries, competition law can be divided into three legislative modes: separation, unification and mixing.
1, discrete: that is, the anti-unfair competition law and the anti-monopoly law are legislated separately. The typical countries of this legislative model are Germany and Japan. Among them, Germany's competition legislation is the most typical, and Japan, South Korea and other countries' competition legislation is modeled after Germany's legislative style. Germany's current competition legislation system is mainly stipulated in the Anti-Unfair Competition Law promulgated by 1909 and the Anti-Restrictive Competition Law promulgated by 1957, while Japan has stipulated the Anti-Unfair Competition Law promulgated by 1934 and the Prohibition of Private Monopoly and Guarantee promulgated by 1947 respectively.
2. Unified model: the anti-fair competition behaviors regulated by the Anti-Unfair Competition Law and the Anti-Monopoly Law are merged together to formulate a Market Competition Law to uniformly regulate unfair competition, unfair monopoly and restrictive competition behaviors. That is, all social relations related to market order and fair competition are regulated by this unified law. For example, the Anti-Unfair Competition Law of Hungary and the Fair Trade Law of Taiwan Province Province of China adopted this method. The advantage of unified competition legislation mode is that legal norms are centralized, which is more conducive to law enforcement and judicial work.
3. Mixed mode: This legislative mode is not sure which behaviors belong to unfair competition, which behaviors belong to restricted competition and which behaviors belong to monopoly. There is neither special legislation nor centralized legislation to regulate acts that violate fair trade. On the contrary, many laws have been enacted to regulate all kinds of behaviors that hinder market order. The representative of this legislative model is the United States. The Sherman Act was the earliest law on fair competition in the United States, which mainly aimed at the destruction of the market competition order by the monopoly organization trust at that time. 19 14, the United States promulgated the Federal Trade Commission Act and the Clayton Act, which formed the basis of American competition law. Later, in view of the diversification of market competition forms, the United States subsequently made relevant supplementary amendments to the above laws and related legislation, such as Robinson-patman Act, Wheeler-Lee Act and Wilson Tariff Act. In addition, a large number of court cases on various anti-restrictive competition cases are also the embodiment of American competition law. In Europe, some countries adopt mixed legislation, but it is different from the United States. These countries generally classify behaviors that hinder the market competition order, and there are special laws to regulate specific behaviors that violate the competition order. For example, civil law is used to adjust the unfair competition behavior of relevant departments that infringe on consumers' rights and interests, trademark law is used to adjust the unfair competition behavior of relevant departments that infringe on trademark exclusive rights, and patent law is used to adjust the unfair competition behavior that infringes on patent rights.
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Anti-unfair competition law and anti-monopoly law belong to the category of competition law, which adjust the competitive relationship, the same subject and object, and the competitive relationship of operators in market competition, and they are closely related. At the same time, monopoly and unfair competition are two negative consequences of the competition mechanism. Excessive competition leads to unfair competition, while restricting competition leads to monopoly. Monopoly restricts competition and intensifies the use of unfair competition means. In this way, sometimes, some behaviors of operators include both monopoly and unfair competition, and it is difficult to completely distinguish them. Moreover, both emphasize the principles of equality, voluntariness, fairness and good faith that should be followed in market competition. Both of them are prohibited from harming the legitimate rights and interests of competitors and consumers and protecting the healthy development of social economy. But there are essential differences between them, mainly in the following aspects:
1, the difference of legislative ideas:
Article 1 of China's Anti-Unfair Competition Law clearly stipulates the legislative purpose: "This Law is formulated to ensure the healthy development of the socialist market economy, encourage and protect fair competition, stop unfair competition, and protect the legitimate rights and interests of operators and consumers." Its focus is to protect fair competition and stop unfair competition.
At present, in the economic field of China, unfair competition has become quite common, which has caused a series of serious negative consequences. These negative consequences cannot be overcome by the competition mechanism itself, and the state needs to intervene in the competition order by force to eliminate unfair behaviors that hinder competition. Anti-unfair competition law not only promotes and protects competition, but also plays a role in restraining the negative impact of competition.
The anti-monopoly law is based on economic liberalism and economic democracy, and its purpose is to protect enterprise freedom, crack down on monopoly and eliminate differential treatment among enterprises.
The process of competition is also the process of natural monopoly formation. The spirit of the anti-monopoly law is to ensure that enterprises obtain fair competitive ability and competitive opportunities, ensure that enterprises enter the market equally, crack down on and control natural monopoly and administrative monopoly supported by the government, eliminate differential treatment among enterprises, and realize competition among enterprises on the basis of fairness, freedom and equality.
2. Comparison of adjustment angles:
Anti-unfair competition law and anti-monopoly law are both important laws to protect fair competition, which protect and promote fairness from different angles respectively. Anti-competition law starts with regulating all kinds of unfair competition, avoids harm to operators and consumers by stopping unfair competition, and creates a free and fair competition order, which embodies the micro-control of the market by the state through legal means. The anti-monopoly law starts with regulating the state and behavior of restricting competition, preventing a few operators from controlling and manipulating the market and restricting competition, thus maintaining the economic free, democratic and fair competition order, and embodying the state's macro-control over the market. The anti-unfair competition law only pays attention to the protection of competition order, while the anti-monopoly law embodies the dual protection of enterprise freedom and market competition.