共同市场支配地位的理论解构与制度调适

Theoretical Interpretation and Institutional Construction of Collective Market Dominance

我国的反垄断立法、执法和司法实践均已涉及共同市场支配地位元素。共同市场支配地位制度建立在寡头相互依赖理论基础之上,既可以破解寡头市场协同行为的认定难题,又可以成为经营者集中协同效应分析的重要组成部分,具有弥补规制漏洞的重要价值。但是,共同市场支配地位的理论基础日益受到外部干扰等新兴理论的挑战,实施中产生的制度竞合、结构导向与救济难题也引发适用困境。因此,有必要在本地化视角下进行制度调适,通过妥善处理与相邻制度的关系以及构建恰当的分析范式,在发挥制度价值和化解制度困境中取得平衡。

China’s Anti-monopoly Law has involved elements of collective market dominance which is based on the theory of oligopoly interdependence. Collective market dominance has the value of making up the regulation loophole by addressing the difficulty of identifying concerted practices in the oligopoly market and serving as a component of synergy effects analysis in merger control. However, its theoretical basis is increasingly challenged by new theories such as external interference, and its implementation is proved to have such consequences as rules concurrence, structuralism and relief dilemma. Therefore, it is necessary to adjust institutional construction of collective market dominance from the perspective of localization and to balance its value and predicament by properly handling its relationship with relevant regulatory approaches and constructing an appropriate analysis paradigm.