限制最低转售价格协议并非当然违法?——与上海市高级人民法院民三庭庭长朱丹商榷

The Agreement of Restricting Lowest Resale Price is Really Not Per Se Illegal?——To discuss with ZHU Dan,Chief Judge of Civil Court III of Shanghai High People's Court

"限制最低转售价格协议是否当然违法"的争论焦点是"限制最低转售价格协议是否垄断协议"的问题。通过审判全国首例纵向垄断协议纠纷案,上海高院认为垄断协议应以具有排除、限制竞争效果为构成要件,限制最低转售价格协议并不当然违法。对此,笔者全面考察《反垄断法》第14条后,认为列举项本身构成垄断协议,因此作为列举项之一的限制最低转售价格协议当然违法。上海高院的结论有三处欠妥:曲解了《最高人民法院关于审理因垄断行为引发的民事纠纷案件应用法律若干问题的规定》第7条的含义;对《反垄断法》宗旨的理解太过片面;削弱《反垄断法》权威的同时,使行政机关陷入执法的窘境。

Debate over whether ＂the agreement of restricting lowest resale price is per se illegal or not ＂ is an issue of ＂the agreement of restricting lowest resale price is a kind of monopoly agreement or not＂. Via bringing the first vertical monopoly agreement dispute to trial, Shanghai High Court finds out the monopoly agreement should be mainly composed of excluding and restricting the effect of competition, so agreement of restricting the lowest resale price is really not per se illegal. For above mentioned, after the writer fully studying Article 14 of Antimonopoly Law,listing subparagraph itself belongs to monopoly agreement is deemed, therefore restricting lowest resale price agreement being one of citing items certainly is illegal. There are three points in Shanghai High Court＇s Conclusions are improper： firstly misinterpreting the meaning of Article 7 of Provisions of the Supreme People＇s Court on the Trial of Cases of Civil Disputes Law Application Problems Caused by the Monopoly; secondly too partially understanding the purpose of Antimonopoly Law, and thirdly getting administrations into awkward situation during enforcing the law while weakening the authority of Antimonopoly Law.