竞争法(双语)课程03-antimonopoly-law1-基本框架课件

JUFE

Yu

Ling1Part

2Antimonopoly

Law:Chinese

PerspectiveJUFE

Yu

Ling2Introduction

“The

Sherman

Act

was

designed

to

be

acomprehensive

charter

of

economic

liberty

aimedat

preserving

free

and

unfettered

competition

asthe

rule

oftrade.”——

Northern

Pacific

Railway

Co.

v.

United

States,

356

U.S.

1,

4-5(1958)Learning

ObjectivesJUFE

Yu

Ling(1)

Depict

thedefinition,

the

objectives

and

theframework

of

AML(2)

Expound

3

different

types

of

monopolisticconducts(3)

Explain

how

to

apply

judicial

doctrines

aboutantimonopoly

behaviors(4)

Differ

reasonable

competition

from

monopolisticconducts(5)

Discuss

the

objectives

of

AML(6)

Activity:

How

to

brief

acase?Content4JUFE

Yu

Ling

1.

The

definition,

the

objectives

and

theframework

of

AML

2.

Monopoly

Agreements

3.

Abuse

of

Dominant

Market

Position

4.

Concentration

of

Business

Operators

5.

How

to

investigate

suspicious

monopolisticconducts?

6.

Legal

LiabilitiesJUFE

Yu

Ling5Chapter

3The

Definition,theObjectivesand the

Framework

of

AML1. The

definition

of

AMLJUFE

Yu

Ling6

1.1 It

is

law

that

promotes

or

seeks

to

maintainmarket

competition

by

regulating

anti-competitive

conduct

by

companies.

1.2 It

is

knownasantitrust

law

in

the

UnitedStatesfair

trading

act

in

Korea,

Japan,Taiwananti-monopoly

law

inChina

andRussia,in

previous

years

it

has

been

known

as

tradepracticeslaw

in

the

United

Kingdom

andAustralia.1.3 China

Competition

lawJUFE

Yu

Ling7

In

the

broad

sense，China

competition

lawincludes

4

parts,

whereas

competition

law

oftenbe

used

in

a

narrow

sense,

which

only

includesAntimonopoly

Law

and

Law Against

UnfairCompetition.JUFE

Yu

Ling1.3 China

Competition

lawCompetitionlawAnti-monopolyLawLawAgainstUnfairCompetitionConsumerProtectionActProductQualityLaw1.4

History

of China

LegislationJUFE

Yu

Ling9(1)

It

is

commonly

recognized

that

the

legislation

of

theanti-monopoly

law

in

China

initiated

since

August

1987.But(2)

30

August

2007,

the

10th

NPC

(

NationalPeople'sCongress

)

Standing

Committee

passed

and

promulgatedthe

AML.(3)1

August

2008,

the

AML

was

put

into

enforcement.QuestionJUFE

Yu

Ling10

AML

post-term

birth:

What are

the

mainobstacles?2.

The

objectives

of

AMLJUFE

Yu

Ling11

Article

1

This

Law

is

enacted

for

the

purpose

ofpreventing

and

curbing

monopolistic

conducts,protecting

fair

market

competition,

enhancingeconomic

efficiency,

maintaining

the

consumerinterests

and

the

public

interests,

and

promotingthe

healthy

development

of

socialist

marketeconomy.Class

DiscussionJUFE

Yu

Ling12

What

is

the

objective

of

EC?What

is

the

objective

of

US.A?consumer

interestsCompetition

orderActivity: Case

StudyJUFE

Yu

LingVirgin

Atlantic

Airways

CasesJUFE

Yu

Ling

Virgin

against

British

Airways'

loyalty

rebateschemes

which

effectively

tie

travel

agentstoBritish

Airways,

discouraging

the

travel

agentsfrom

selling

tickets

for

otherairlines.The

Commission

decisionVirgin

Wins.JUFE

Yu

LingThe

Commission

found

that

both

BA

performancebonus

schemes

amounted

to

an

abuse

of

itsdominant

positionby

rewarding

loyalty

fromtravel

agents

and

by

discriminating

between

travelagents

with

the

object

and

effect

ofexcludingBA’s

competitors

from

the

UK

market

for

airtransport.In

consequence,

the

Commission

imposed

a

fineof

£6.8

million

in

1999.Cf.

In

EU:

Virgin

Wins.

EU:

the

Commission

concern

withprotecting

competition,

not

competitors.

U.S.:

Virgin

lost.

US:

the

Court

concerns

with

protectingconsumer

welfare,

not

competitors.JUFE

Yu

Ling3.The sources

and

framework

ofAMLJUFE

Yu

Ling173.1

Anti-monopoly

statutes

can

be

unclear,

therebyrequiring

the

authorities

and

the

courts

todeterminewhat

really

constitutes

antitrustlaw.Question:Can

u

list

the

sources

of

China

AML?3.The sources

and

framework

ofAMLJUFE

Yu

Ling183.2 The

sources

of

China

AML“AML”

refers

to

antitrust

statutes,enforcement

guidelines

by

the

authorities,andthe

interpretation

of

these

statutes

by

the

courts.Guidelines

on

Relevant

Market

Definition

by

State

CouncilNDRCMOFCOME3.

3

The framework

of

AMLJUFE

Yu

Ling19Chapter

I General

ProvisionsChapter

II Monopoly

AgreementsChapter

III Abuse

of

Dominant

Market

PositionChapter

IV Concentration

of

Business

OperatorsChapter

V Abuse

of

Administrative

Power

to

Eliminateor

Restrict

CompetitionChapter

VI Investigation

into

Suspicious

MonopolisticConductsChapter

VII

Legal

LiabilitiesChapter

VIII

Supplementary

ProvisionsJUFE

Yu

Ling20About

Chapter

I

GeneralProvisionsQuestionsJUFE

Yu

Ling211.

How

many

“monopolistic

conducts”

are

listed

inAML?Monopoly

agreements

reached

between

businessoperators;Abuse

of

dominant

market

position

bybusinessoperators;

andConcentration

of

business

operators

that

may

have

theeffect

of

eliminating

or

restricting

competition.Abuse

of

Administrative

Power

to

EliminateorRestrict

CompetitionQuestionsJUFE

Yu

Ling221.

How

many

“monopolistic

conducts”

are

listed

inAML?Monopoly

agreements

reached

between

businessoperators;Abuse

of

dominant

market

position

bybusinessoperators;

andConcentration

of

business

operators

that

may

have

theeffect

of

eliminating

or

restricting

competition.Abuse

of

Administrative

Power

to

EliminateorRestrict

CompetitionQuestionsJUFE

Yu

Ling232.

How

to

interpret

Art.

5

and

Art.

6?Article

5

Business

operators

may,

through

faircompetition

and

voluntary

association,

get

togetheraccording

to

law,

to

expand

the

scale

of

theirbusinessoperations

and

enhance

their

market

competitiveness.Article

6

No

business

operator

with

dominant

marketposition

may

abuse

its

dominant

position

toeliminateor

restrict

competition.MonopolyJUFE

Yu

Ling24

Monopoly

is

a market

structure.Monopolies

can

be

established

by

a

government,

formnaturally,

or

form

by

integration.

Monopoly

is

a

kind

of

monopolistic

conductswhich

may

eliminate

or

restrict

competition.AML

aims

to……QuestionsJUFE

Yu

Ling253.

Please

list

the

AML

enforcement

authorities

inChina?1+3+XAnti-monopoly

Commission

(State

Council)NDRC (National

Development

and

Reform

Commission

)Price

Monopoly

agreementsMOFCOMEConcentration

of

business

operatorsSAIC

（State

Administration

for

Industry

and

Commerce）Other

kinds

of

MonopolyagreementsAbuse

of

dominant

market

positionChina:

“1+3+X”

Enforcement

ModelChina

EAAMC1AMEA3MOFCOMConcentrationreviewNDRCPriceMAsSAICMAs

Abusing

market

powerSector

RegulatorsXJUFE

Yu

Ling26JUFE

Yu

Ling27About

Chapter

VIIISupplementary

ProvisionsQuestionsJUFE

Yu

Ling281.

Please

read

Article

55 and

Article

56.

“This

law

shallnot

apply

to

theconduct……”Do

you

think

what

is

the

differences

between

Article

55and

Article

15?Exception:

适用除外，“表面上符合也不适用”Exemption：豁免“符合免责条件，网开一面”QuestionsJUFE

Yu

Ling292.

How

to

interpret

IP

is

a

kind

of

monopoly?Intellectual

property

(IP)

rights

are

legally

recognizedexclusive

rights

to

creations

of

the

mind。Article

55

This

law

shall

not

apply

to

the

conduct

ofbusiness

operators

to

exercise

their

intellectualproperty

rights

according

to

the

laws

andrelevantadministrative

regulations

on

intellectual

propertyrights;

however,

this

Law

shall

apply

to

the

conductof

business

operators

to

eliminate

or

restrict

marketcompetition

by

abusing

their

intellectual

propertyrights.Activity: Case

StudyJUFE

Yu

LingInstructionsJUFE

Yu

Ling

1)

Search the

case

about

“Qualcomm

inanti-monopoly

probe”

(US,

Korea,

China)

fromwebsite.

2)

Analyze

what

is

Qualcomm’s

“

hot

potato”.Qualcomm

is

the

world's

largest

manufacturer

ofwireless

telecommunication

products,

holding40percent

of

the

market

in

China

and

30

percent

in

theworld.

In

2013,

Qualcomm's

revenue

reaches

$24.3billion,with

nearly

half

coming

from

China

and$7.88billion

from

patents.Qualcomm’s

“ hot

potato”JUFE

Yu

Ling

It

is

accused

of

unfair

and

discriminatory

priceswith

unreasonable

conditions,

according

to

theNDRC.Normally,

royalty

payments

are

no

more

than

10percent

of

a

product's

selling

price.

But

manufacturersusing

Qualcomm

chips

have

been

asked

to

payexorbitant

patent

fees.KFTC challenge

Qualcomm

for

exclusionaryconduct

andabuse

ofdominanceJUFE

Yu

LingThe

KFTC

announced

on

23

July

2009,

its

decision

to

impose

afine

of $208

million

on

Qualcomm

for

abusing

its

“near-monopolyposition”

on

the

Korean

CDMA

chip

market

(in

2008,

it

held

99.4per

cent

of

themarket).According

to

the

KFTC,

which

had

been

investigating

the

case

formore

than

three

years,

Qualcomm

abused

its

dominant

position

byimposing

higher

royalties

on

mobile

phone

manufacturers

who

useits

rivals’

products

and

by

offering

rebates

to

Korean

mobile

phonemakers

who

agreed

to

purchase

a

majority

of

their

chips

fromQualcomm.JTFC

challenge

Qualcomm

for

exclusionaryconduct

andabuse

ofdominanceOn

27July 2009,

the

Japan

Fair

TradeCommission(JFTC)

sent

a

draft

ruling

to

Qualcomm

alleging

thatthe

company's

licensing

policy

was

abusive

towardsmanufacturers

of

semiconductor

integrated

circuitsused

in

third

generation

mobile

phones.

The

JFTC

sent

a

formalcease

and

desist

order

to

Qualcomm

on

2October.JUFE

Yu

LingJUFE

Yu

Ling35About

Judicial

doctrinesofmonopolistic

conductsIllegal

per

se

violations

vs. the

Ruleof

ReasonJUFE

Yu

Ling36

Read

AML

Art.

13,

14,

15,17.

(1)

illegal

per

se

Which

means

that

the

act

is

inherently

illegal.blatant

and

substantially

anticompetitiveThus,

an

act

is

illegal

without

extrinsic

proof

of

anysurrounding

circumstances

such

as

lack

of

scienter(knowledge)

or

other

defenses.Acts

are

made

illegal

per

se

by

statute,

constitution

orcaselaw.Courts

and

agencies

seeking

to

apply

the

per

serule

must:JUFE

Yu

Ling371.show

"the

practice

facially

appears

to

be

one

thatwould

always

or

almost

always

tend

torestrictcompetition

and

decrease

output";2.show

that

the

practice

is

not

"one

designed

to

'increaseeconomic

efficiency

and

render

markets

more,

ratherthan

less,

competitive'";3.carefully

examine

market

conditions;and4.absent

good

evidence

of

competitiveness

b