“禁止自带酒水”非正当性新解

New Explanations to the Invalidity of “No Outside Beverage”

"禁止自带酒水"不具有正当性并非简单因为其是霸王条款,而是因为其实质是饭店利用垄断地位高价搭售非自制酒水。酒水销售与用餐服务是两项可分的业务,酒水销售并不属于饭店的要素业务。饭店可以垄断用餐服务,但不得垄断酒水销售服务。经济分析不支持"禁止自带酒水",效率不得建立在损害他人的经济福利的基础上。"禁止自带酒水"问题的解决,除了认定店堂告示无效之外,还应当通过立法、行业自律加以解决。

The invalidity of＂ No Outside Beverage＂ is not simply because it is an imparity clause, but because it in essence is the restaurants which make use of their monopoly positions to make a high price tie-in sale of beverages made by others. Beverage sales and dining services are two independent businesses, and beverage sales are not the key business of restau- rants. The restaurants may monopolize dining services, but they can＇t monopolize beverage sales. ＂No Outside Beverage＂ is not supported by economic analysis and efficiency cannot damage others economic welfare. In addition to announce that shop notices are invalid, as a way to solve the problems caused by ＂No Outside Beverage＂, we still need measures of rela- ting lawmaking and industry self-discipline.