Type-Oriented Determination of the Nature of Resale Price Maintenance from the Standard Substantivist
Affected by Article 18 of Chinese Anti Monopoly Law,the determination of the nature of resale price maintenance by people's courts or law enforcement agencies follows the formalistic standard that as long as the involved behavior has the form of an agreement on resale price maintenance,it constitutes a vertical monopoly agreement.The formalistic standard hardly reveals the essence of the involved behavior,resulting in defects such as a contradiction between the nature determination of a behavior and the decision of punishment,which is not conducive to the systematic application of the anti-monopoly law.The substantivist standard for nature determination is based on the substantive mechanism of the involved behavior to determinate the nature of a behavior.The substantivist standard can be used to accurately determine illegal behaviors,avoiding the above-mentioned drawbacks,and overcoming the shortcomings of the formalism,therefore,the nature determination of resale price maintenance should be carried out according to the standard of substantivism.From the substantivist Standard,the resale price maintenance should be determined in a typed-oriented way,and"the dichotomy between a behavior of abusing market dominance and a monopoly agreement is the basic approach to such type-oriented nature determination.In terms of the former type,an operator's behavior of abusing their market dominance to force trading counterparties to sign a resale price maintenance agreement constitutes the abuse of market dominance and the resale price maintenance jointly conducted by oligopolistic operators can constitute the abuse of common market dominance.In terms of the latter type,when one party to the agreement constitutes the organizer or substantive helper of a horizontal monopoly agreement,the resale price maintenance constitutes a horizontal monopoly agreement;The same trading counterpart of operators who implement collaborative behavior can be regarded as the organizer of the collaborative behavior,and at this time,the resale price maintenance constitutes a collaborative behavior;Under certain conditions,the resale price maintenance reached by upstream and downstream operators through collusion constitutes a vertical monopoly agreement.
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维普
