单方拒绝交易的反垄断法规制问题

The Regulations on the Unilateral Refuse to Deal in Antitrust Law

单方拒绝交易被认为是经营者滥用市场支配地位的行为,但支持反垄断法规制此类行为的"必要设施"理论是不充分的。规制单方拒绝交易行为和经营自主权有冲突,对经营者从事投资和创新的动机有负面影响,而且在救济措施方面也存在困难。美国反垄断法经过反复摸索已经放松了对拒绝交易行为的处理。中国反垄断法采取"过错推定"的做法,要求垄断经营者必须提供采取此类行为的正当理由,迫使垄断经营者承担了过多的法律风险,恰当的做法应当是"无罪推定"。

Unilateral refuse to deal is considered as the abuse of its dominant market position by a company, while the doctrine against it is not well established. Regulating unilateral refuse to deal conflicts with the right of business discretion, and beside the difficulty to make a remedy, it also has a negative impact on the companies＇ motivation to investment and creation. The antitrust law of the United State has relaxed the regulation on refuse to deal after many year of practice. The antitrust law of our country takes the doctrine of presumed fault. Companies with monopoly power have to provide justified reasons when they refuse to deal with others, which make them undertake more legal risks. The right answer to unilateral refuse to deal should be the presumption of innocence.