限制转售价格的违法性认定研究

A Study on Illegality Determination of Resale Price Restrictions

几起关于限制转售价格的大案引发对其违法性的激烈争论,而是否违法从根本上取决于对此行为"双重效应"的认识。限制转售价格既可能导致生产商卡特尔、销售商卡特尔、生产商与经销商双边垄断等负面效应,又具有解决"搭便车"问题、消除双重涨价等正面效应。这使得对该行为的规制应该区分情况,慎重在本身违法原则与合理原则中做出选择。基于我国目前的规制模式,应建立"安全港"制度、完善豁免条款,以提高其运行效率,从而推动我国价格与反垄断执法的进步。

Several major resale prices restrictions cases triggered a fierce debate on its illegality. However, whether it is illegal or not depends on the awareness of the ＂dual effects＂ of the resale behavior. Resale price restrictions may lead to producer cartel, retailer cartel, bilateral monopoly of manufacturers and distributors and other negative effects. On the other hand, they have positive effects as to solve the ＂free rider＂ problem, and to eliminate double prices. Therefore regulations on the behavior should be implemented accordingly and careful choice should be made between the per se illegal principle and rational principle. Based on China＇s current regulatory model, a ＂safe harbor＂ system should be established, exemption clauses should be perfected in order to improve its operating efficiency, thus promoting the progress in price and antitrust enforcement.