论规范垄断协议行为的立法完善

On Improvement of Legislation on Regulating the Conduct of Concluding Monopoly Agreement

我国《反垄断法》对垄断协议的规制已不适应现实需求,其在垄断协议定义上存在涵盖过宽问题,应当将其严格限定在实质性排除、限制竞争的范围内;其在垄断协议的分类上存在划分过于简单化问题,应当在目前所作的分类基础上引入一个兜底条款;其在垄断协议的规制原则上存在意思表达不明问题,应当对自身所持的态度作出精确阐述;其在维持转售价格的规制上存在因噎废食问题,应当将重点放在其被滥用情形的防治上;其在垄断协议的豁免制度上存在应对机制不全问题,应当通过科学的安排对相应情形加以补充并作出指引。

The definition of monopoly agreement in the current Anti-Monopoly Law of China has the problem of excessive coverage,so the legislation should limit it strictly within the scope of substantially eliminate or restrict competition.The classification of monopoly agreements has the problem of excessive absolutization,so the legislation should accordingly include a miscellaneous clause on basis of the current classification.The expression of principles of regulating monopoly agreement has the problem of being ambiguous,so the legislation should accurately expound its attitude.The regulation on Resale Price Maintenance has a problem of prohibiting all because of a slight risk,so the legislation should place emphasis on the prevention and control of the abuse of RPM.The exemption system of monopoly agreement has the problem of lacking a comprehensive coping mechanism,so the legislation should make supplemental guidance on corresponding situations through appropriate arrangements.