학술논문
中国法对企业滥用市场支配地位行为的规制
The Regulation on Abuse Dominant Market Position by Enterprises in Chinese Law
중국법대기업람용시장지배지위행위적규제
The Regulation on Abuse Dominant Market Position by Enterprises in Chinese Law
중국법대기업람용시장지배지위행위적규제
Document Type
Article
Text
Text
Source
중국법연구, 05/30/2016, Vol. 26, p. 189-214
Subject
Language
Korean
ISSN
1738-7051
Abstract
企业滥用市场支配地位行为的禁止制度是中国《反垄断法》的核心制度之一。企业滥用市场支配地位行为是指具有市场支配地位的企业不适当地甚至违法地利用其市场支配地位，在一定的领域内实质性地排除或者限制竞争，损害国家利益和社会公共利益的行为。企业滥用市场支配地位行为包括垄断价格、掠夺性定价、拒绝交易、独家交易、搭售、价格歧视等具体类型。企业滥用市场支配地位行为的构成需要同时具备主体、主观方面、客体和客观方面四个要件。具体而言，企业滥用市场支配地位行为的主体应当是具有市场支配地位的一个企业或数个彼此之间不存在实质性竞争关系的企业；企业滥用市场支配地位行为的主观方面体现在其有滥用的故意，即它或它们明知其滥用行为会造成排除或者限制竞争的损害后果的发生，却希望和放任这种后果的发生；企业滥用市场支配地位行为侵犯的客体是自由、公平的有效竞争秩序以及与竞争秩序息息相关的国家利益和社会公共利益；企业滥用市场支配地位行为的客观方面表现为企业的各种滥用行为以及滥用行为对竞争秩序和国家利益、社会公共利益的实质性损害两个方面。中国《反垄断法》对企业滥用市场支配地位行为明确予以禁止，并课以民事责任与行政责任，但放弃了刑事责任的规制。
The prohibition rule on abuse of market dominant position by enterprises is one of the core rules in the Anti-Monopoly Law of PRC. Abuse of dominant market position is the act that utilizes the dominant market position improperly or illegally to eliminate or restrict the competition substantially in a certain area and damages national interests and public interests, which includes monopoly price, predatory pricing, reject trade, exclusive trade, tie-in sale, price discrimination and so on. The components of abuse of market dominant position by enterprises involve such four elements as the subject, the subjective aspects, the object, and the objective aspects. Specifically, the subject of abuse of market dominant position by enterprises is one or more enterprises among which there is no substantial competitive relation. The subjective aspects of abuse of market dominant position by enterprises is embodied in that the enterprise has the intent to abuse, namely it is fully aware that its abuse act will bring about the damage consequence in respect to eliminate or restrict the competition substantially in a certain area but it hopes and indulges such consequence occurs.The object infringed by abuse of market dominate position is the free and equal competition order and the national interests and public interests with close relation thereof. The objective aspect of abuse of market dominate position is reflected in various abusive acts conducted by enterprises and its substantial damages on the competition order, national interests and public interests the two aspects. Abuse of dominant market position is definitely prohibited by the Anti-Monopoly Law of PRC accompanied with the punishment of civil and administrative sanctions but criminal sanction.
The prohibition rule on abuse of market dominant position by enterprises is one of the core rules in the Anti-Monopoly Law of PRC. Abuse of dominant market position is the act that utilizes the dominant market position improperly or illegally to eliminate or restrict the competition substantially in a certain area and damages national interests and public interests, which includes monopoly price, predatory pricing, reject trade, exclusive trade, tie-in sale, price discrimination and so on. The components of abuse of market dominant position by enterprises involve such four elements as the subject, the subjective aspects, the object, and the objective aspects. Specifically, the subject of abuse of market dominant position by enterprises is one or more enterprises among which there is no substantial competitive relation. The subjective aspects of abuse of market dominant position by enterprises is embodied in that the enterprise has the intent to abuse, namely it is fully aware that its abuse act will bring about the damage consequence in respect to eliminate or restrict the competition substantially in a certain area but it hopes and indulges such consequence occurs.The object infringed by abuse of market dominate position is the free and equal competition order and the national interests and public interests with close relation thereof. The objective aspect of abuse of market dominate position is reflected in various abusive acts conducted by enterprises and its substantial damages on the competition order, national interests and public interests the two aspects. Abuse of dominant market position is definitely prohibited by the Anti-Monopoly Law of PRC accompanied with the punishment of civil and administrative sanctions but criminal sanction.