反垄断法域外适用制度的比较研究

我国即将颁布反垄断法。在这部维护市场竞争秩序的基本法律中安排域外适用制度是社会主义市场经济体制和WTO的要求。我国应在属地主义和保护主义原则以及国民待遇原则的理论基础上 ,主要借鉴美国和欧共体竞争法的域外适用制度 ,在反垄断法中规定域外适用的基本原则和构成要件。

China＇s High-Speed Railway Industry and Applicability of the Anti-Monopoly Law

China＇s high-speed railway industry achieved dazzling development over the years, but not much research has been devoted to this industry from the perspeetive of competition policy. This paper focuses on the industrial organization of China＇s high-speed railway industry and the applicability of the Anti-Monopoly Law. We intend to answer the following questions： （l） Why is the high-speed railway industry not an industry of natural monopoly？ Which segments of the industry have elements of natural monopoly？ （2） At the level of corporate organization, what is the legal and economic rationale behind the patterns of China＇s high-speed railway undertakings evolving from government-affiliated enterprises to special legal person enterprises and then shareholding companies？ （3） The applicability of the Anti-Monopoly Law to the high-speed railway industry. Our conclusions from the perspective of competition policy are worth referencing for similar industries such as electric power, telecommunications, and water and gas supply.

Identity Transformation of China through the Anti-Monopoly Law Penalty on Japanese Automotive Parts and Bearings Enterprises

The identity transformation of China is analyzed through the legal punishment given by China＇s National Development and Reform Commission on Japanese automotive parts and bearings enterprises that broke China＇s Monopoly Law by price- fixing in the automotive parts market of China for more than ten years. The standards for illegal conduction this penalty based are the international Cartel rules, the specific legal procedure is beyond the main concern of this study so the obscurity of how this penalty decided is kept aside for the sake of respecting the painstaking labor fruits of relevant executive departments as well as for dispensing political sensitivity related to any academic analysis developed. Three Japanese newspaper reports concerning this penalty fine are selected for critical discourse analysis. Emotional ambience of them is derogative, neutral, and approving respectively. Foucault＇s triad relationship of discourse-power-identity is borrowed and the postmodernists＇ view of the ＂other＂ is corroborated with the self-presentation of China. Positive self-presentation is underscored by the contrast of negative other-presentation and vice versa, the negative commendation on this punishment event revealed in certain news coverage is to lessen the negative image of Japanese enterprises because of their shared Japanese identity. However their fundamental tone maybe, the fact that China evolves to be able to handle the illegal international events in its confines with dignity is tacitly recognized as a warning in three newspapers. The new identity of China is thus highlighted as the role of the other by the Japanese media. The reason why Japanese accept it instead of staging substantial resistance is analyzed from the Japanese cultural considerations of the hierarchical sequence or the ＂weizhiyishi＂ （positional consciousness or postural consciousness）, and the practical reasons of why Hitachi and Nachi commit self-confession is analyzed. All these responses from Japanese side are the manifestation of China＇s being in charge of the situation, it has the ball at its feet in this power gaming.

China＇s Choice of Analytical Models for Its Anti-Monopoly Law

Modem analytical models for anti-monopoly laws are a core element of the application of those laws. Since the Anti-Monopoly Law of the People＇s Republic of China was promulgated in 2008, law enforcement and judicial authorities have applied different analytical models, leading to divergent legal and regulatory outcomes as similar cases receive different verdicts. To select a suitable analytical model for China＇s Anti-Monopoly Law, we need to consider the possible contribution of both economic analysis and legal formalism and to learn from the mature systems and experience of foreign countries. It is also necessary to take into account such binding constraints as the current composition of China＇s anti-monopoly legal system, the ability of implementing agencies and the supply of economic analysis, in order to ensure complementarity between the analytical model chosen and the complexity of economic analysis and between the professionalism of implementing agencies and the cost of compliance for participants in economic activities. In terms of institutional design, the models should provide a considered explanation of the legislative aims of the law＇s provisions. It is necessary, therefore, to establish a processing model of behavioral classification that is based on China＇s national conditions, applies analytical models using normative comprehensive analysis, makes use of the distribution rule of burden of proof, improves supporting systems related to analytical models and enhances the ability of public authorities to implement the law.

Anti-monopoly law in the compulsory licensing of intellectual property

As an incentive to innovation, intellectual property （IP） should be protected by law. However, as it is a key factor in market competition, it should also be subject to competition law. In most jurisdictions, restriction of competition related to IP rights is not a black and white question, and such rights are challenged only when the IP owners hold market power and when protection of their fights has a serious and unreasonable effect on competition. In assessing IP-related restriction of competition, we need to analyze several elements： we have to define the relevant markets, identify the parties concerned, determine their market share, assess the anti-competitive effects of the controls, etc.. China＇s existing legislation is not adequate to solve problems arising from IP-related restriction of competition. Nevertheless, the process of China＇s legislation on this issue shows clearly that the misuse of IP rights for the purpose of excluding or significantly restricting competition is not justifiable under competition law.