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The 86th Professor Salon: Professor Shi Jichun and the Antitrust Dialectics


On March 15th, 2017, the 86th Professor Salon was held in Mingde Law Building Room 601. Professor Shi Jichun served as the keynote speaker. The title was ¡°the Antitrust Dialectics¡±. Professor Meng Yanbei served as the chairperson. Professor Lin Jia, Professor Mo Yuchuan, Professor Zhu Daqi, Professor Guo He, Professor Li Chen, Professor Yang Jianshun, Professor Han Liyu, Professor Yang Dong, Professor Li Yanfang, Professor Xin Haibao, Professor Liu Pinxin, Professor Yin Shaoping, Associate Professor Wang Zongyu, Associate Professor Song Biao, Assistant Professor Yao Haifang, Assistant Professor Xiong Binwan and more than 60 students participated in the salon.

Professor Meng Yanbei first welcomed and thanked the presence of teachers and classmates to attend the first term salon of this semester. Professor Meng Yanbei pointed out that the current domestic anti-monopoly law on the legislative and practical research, focusing on specific behavior, specific system and typical difficult cases, the basic theory of anti-monopoly research is still relatively weak, Professor Shi Jichun today selected " Antitrust law dialectics "such a perspective, for the concern of anti-monopoly law, the basic principles of anti-monopoly teachers and students concerned, there will be a good inspiration.

Professor Shi Jichun started from huge subsidies and mergers incident a few years ago between Didi and Kuaidi (China¡¯s Uber) , which led to the theme of this salon, as well as his attention and thinking. 2012, the creation of Didi and Kuaidi, through subsidies to compete, respectively, subsidies for hundreds of millions of dollars, the peak day of subsidies to reach 100 million yuan, more than 20 Internet license platform lost then closed. May 16, 2014, two companies made a conspiracy, and announced the cessation of subsidies. February 14, 2015, the two announced the merger, since Didi didn¡¯t have close competitors in the market. For these, three competition law enforcement agencies are indifferent, stand by. Until August 1, 2016, Didi announced the merger of Uber, the public suspected of their illegal monopoly, the relevant law enforcement agencies were forced to stand, but it was too late, Didi was already the network car market platform Giant, and then have nothing to compete with the opponent. Thus, Professor Shi Jichun thought the following three dialectics:

The first point, the monopoly of the dialectics of fraud. Monopoly, antitrust is not a strict concept, the law cannot be clearly defined, people often confused. For example, "hate" three barrels of oil, the three major telecommunications monopoly, people "hate" is precisely its legitimate organization and business monopoly, cannot be anti, should not be anti. Anti-monopoly law is to reverse the monopoly agreement, abuse of advantage, damage to the competition, the concentration of these three monopolies. In the monopoly industry can compete in the field and the introduction of competition, but also antitrust, but not antitrust antitrust. Because it is difficult for any monopoly to legally determine that it is legal or illegal, so we must take the monopoly of the pros and cons, in order to correct the understanding of monopoly, appropriate antitrust.

On the one hand, the monopoly of course has its disadvantages, restrictions, distortions, eliminate competition, does not help to improve efficiency, and the rational allocation of resources, and so on. But on the other hand, monopoly is not nothing, intellectual property is a monopoly, because to encourage innovation. In the low concentration of the market, the monopoly is also good, the competition is devastating, the simplest, for example, since ancient times people know "Valley cheap farmers", so the monopoly of farmers do not anti, should encourage and support them engage in monopoly. Article 15 of the Anti-Monopoly Law also provides for the exemption of antitrust.

More importantly, antitrust not only to maintain free and fair competition, but also to promote market and economic efficiency, "anti-monopoly law" Article 1 of this point has not been gained due attention. First of all, in a worldwide view, the value of anti-monopoly law included our country, efficiency, social well-being and consumer interest are higher than the value of competition and antitrust. The reason is that competition can generally improve efficiency, through the survival of the fittest to rational allocation of resources to promote the market players continue to improve the management, innovative technology and business model, to provide cost-effective products and services. In general, this state can increase the total wealth of society and the total welfare of consumers, but not necessarily, then competition and antitrust will give way to social welfare and consumer interests. First, competition may lead to waste of resources. The ideal competition is that the information is completely symmetrical, the transaction cost is zero, the product is no difference, the market enters and exits the state without cost, but this is not possible, the reality of the market is the information is not completely asymmetrical, the product varies widely, there is transaction costs, Market entry and exit may be due to the huge cost and not come back. Second, the market economy and the ideal state of competition required by the decentralized market structure, that is, low concentration of the market structure is not efficient, numerous small businesses fend for themselves, poor economic and technological strength, cannot engage in innovation, only can play a price war, leading to all enterprises have no way to gain a dominant position from the competition, cannot stand out from the competition. Premier Li Keqiang recently said that "big enterprises to indomitable spirit, small businesses to be overwhelming", is to let large enterprises oligopoly, small businesses with large enterprises, the formation of industrial chain, this economy is effective and sustainable. Thirdly, if the size of a particular industry is small and the market concentration is low, it will inevitably lead to the inefficiency of the industry and defeat the international competition, which makes the industry eliminated or controlled by foreign capital.

The trend of competition is centralized, antitrust must conform to this trend. In high concentration or high concentration of the market, competition is no longer a simple price competition, but a set of innovation, quality, service, brand, price and international competition as an integrated competition, making the competition between the oligarchs, oligarchs and non-oligarchs and non-oligarchs between the full start, competition will not be eliminated, but more intense, more advanced. Therefore, the anti-monopoly law of all countries to the overall efficiency, consumer interests, public interest, national interests and other standards, to re-examine the market and market competition, are no longer antitrust market structure, but through the operator centralized control, And the use of dominant position of the investigation or laissez-faire, to promote an effective market structure, optimize the market structure.

Second, the dialectics of antitrust rationale. In the antitrust, the "economy" of the market economy is more important and more critical than any provision of the antitrust law. The provisions of the anti-monopoly law are only to determine whether a behavior is consistent with the requirements of the market economy to provide an analysis of the framework and methods cannot be directly or blindly applied. Therefore, the anti-monopoly law can be effectively achieved, highly dependent on whether the social and competitive law enforcement can form the appropriate concept of market economy. For any monopoly should be a specific rational analysis, and can not be ignored, or arbitrarily banned and penalized.

Professor Shi Jichun cited Didi and Kuaidi to explain the pursuit of maintaining an effective oligopoly market structure and the relationship between anti-monopoly law, specifically made four points analysis:

First, cannot adhere to law strictly. Law on the abuse of subsidies, cross subsidies are not provided, but who can subsidize, who may abuse the subsidy? Must be a dominant market operator. Article 17 of the Anti-Monopoly Law expressly authorizes the anti-monopoly law enforcement agencies to have the right to identify other acts of abuse of market dominance that are not enumerated, to make hundreds of millions of dollars to subsidize, to use this improper means to defeat many competitors, Of course, the abuse of the dominant market position. It is true that the operator is concentrated on the basis of the turnover as the standard, and the merger may not be well calculated. However, the merger is no doubt that the competition is ruled out, and the provisions of the Provisions of the State Council on the Standard for the Distribution of Businessmen 4 clearly stipulates that there is a substantive standard in addition to the amount of the standard. due to the heavy form of light substantive, resulting in damage to the behavior of competition without feeling, or feel but the face of the "Internet +", "shared economy" halo of competitive behavior with inexplicable awe, so since the law does not specify It is preferred to do nothing.

Second, the lack of market economy "reason". The most basic "reason" of Market economy, that is, operators based on their own products, services to compete, cannot use products, services, quality, price means, such as subsidies to compete, competition law enforcement agencies if appropriate Market economy and fair competition concept, will inevitably hate such acts, and according to the law to be disposed of. Law enforcement agencies lack the oligopoly market is the most effective market concept. The oligopoly law can not only be dismantled by eliminating the oligarchy, but find ways to maintain. As a result, easy to let go of the merger of the two giants, leading to a dominance, the independence of the platform can basically ignore the competition with competitors and practices, comfortably "do it" to make a lot of money. After the combination of Didi and Uber, the two relevant law enforcement agencies have had to make some kind of response under the pressure of the people, but it is "after the gun" because the merger is no problem in the law, the competition does not produce any substantive influences. In other words, since antitrust enforcement agencies have not established these two important concepts, they have not been able to perform their duties well in accordance with the legal framework and mandate.

Thirdly, the cooperation between law enforcement agencies with the problem. Competition in the form of subsidy involves anti-unfair competition and anti-price monopoly, in our country belong to two different law enforcement agencies, and thus become a "unruly" areas, as well as laissez-faire. Professor Shi Jichun has been concerned about these years and stressed the accountability system, the first step in accountability is to scientifically and rationally determine the responsibility, so as not to conflict of roles, absence, offside, which shows that accountability is not in place in China, It will take time.

Fourth, the relevant market identified issues. It seems that this is a technical issue of antitrust, but it is closely related to the concept of market economy, competition and antitrust: the idea is in place, the relevant market problems are solved; the concept is not in place, not correct, not firm, the relevant market is a " Why no speech "problem. In a particular antitrust case, there is no standard of relevant market recognition, the extent to which the product and the area are, depends on the correct understanding of the anti-monopoly law objective, the abhorrence of the act of injuring the competition, competition and market efficiency of the persistent pursuit, otherwise the relevant market cannot be reasonably determined or even impossible to determine. In the case of a Didi Kuaidi, there is a wide range of related markets in the internet car, which is the same as the EU,s once hesitant hotel network, but China,s antitrust followed the US Europe step by step, the lack of innovation, the lack of the hotel as the EU hotel network to identify the relevant market as the relevant network that the network platform identified as the relevant market, the courage in this area is difficult to correct antitrust.

In addition, antitrust should establish a concept of safety above competition, including transaction security, financial security, food security, national security, and so on. For example, the competent authorities for the financial security of the encryption standard certification, within a certain range of designated a number of cryptographic suppliers, anti-monopoly law enforcement agencies actually act on the grounds of the supplier to punish, resulting in the supplier so closed, which is a typical cut method, the lack of the concept case.

Third, antitrust and industrial policy coordination and compatibility of dialectics. Antitrust is always in the specific industry, in the relevant market, therefore, in the application of antitrust law, the anti-monopoly law enforcement agencies must consider the characteristics and requirements of related industries, and related industrial policy coordination. Competition law, anti-monopoly law and industrial policy are inseparable, except for the application of anti-monopoly law and exemption is anti-monopoly law, competition law and industrial policy coordination. For an industry, the most important and most important is the standard, it is related to the level of technology, industry grade, market share, trading and consumption convenience, as well as national security, so the relevant anti-monopoly should promote innovation, While maintaining national interests and national security, such as China,s independent intellectual property rights of high-speed rail standards, mobile communication standards, bank card clearing standards, anti-monopoly law should allow these standards to engage in monopoly agreements. In coal, building materials and other industries, low standards mean that waste, inefficiency, pollution, antitrust should prohibit the relevant low-standard allies, tolerance and exclusion, limiting the backwardness of these enterprises monopoly behavior.

Overall, China,s market concentration is not up to the state, in an inefficient state. Free access to high degrees of freedom of the market is generally low concentration, such as retail, textile, but its concentration is still far less than developed countries; some of the concentration should be higher markets such as steel, cars, etc. are foreign oligarchs Monopoly, in our country is also scattered and concentrated is not high situation. In this regard, anti-monopoly law enforcement should cooperate with other relevant policies to promote cooperation between enterprises, upstream and downstream connections, expand the scale of operation, the acquisition or concentration of these areas as far as possible.

One of the meanings of the structural reform of the supply side is the high quality and price, the change of the quality of the national industry, the low profit and the low price. The effect of blind competition is contrary to this requirement. On the small and medium-sized operators of high-quality alliance such as "conscience dough-rolls brother", innovative quality products or technology appropriate monopoly high prices, antitrust should be a positive evaluation.

On the relevant market, Professor Shi Jichun said that it may be global, a country,s exclusive may be international oligopoly, it is a good thing, the international oligopoly between the higher efficiency, the overall economic and social interests and the meaning of consumer welfare is greater. Such as the United States Boeing, McDonnell Douglas, China,s high-speed rail, Beidou navigation, CUP domestic exclusive bank card clearing industry, and so on, its monopoly and competition, from the national interests, in the world to be examined.

The same nature of the market, cannot simply apply a certain analysis model or method. On the Internet about the platform through the external subsidies for monopoly and unfair competition without a sense of open or open side, to some extent blindly believe in the platform of the bilateral market theory. Although the platform is a bilateral market, but the platform between the two sides does not exist between the objective of the transfer of the basis of the platform more intermediary nature, enterprises taking advantage of society and law enforcement have not from the "wool in the pig body" psychedelic wake up, the competition law enforcement,s economic analysis and speculative ability has not kept up with the success of playing a subsidy game.

Finally, Professor Shi Jichun once again stressed that the railway, oil, telecommunications, electricity and other monopoly industries are legitimate, as long as the "antitrust" Act Article 7, in its organization and management of the premise of a monopoly, to prevent its abuse of advantage Can be. Anti-monopoly on the monopoly industry, more is the introduction of competition, but this task to the industrial policy, "anti-monopoly law" is powerless.

Professor Shi Jichun finished his speech, the participating teachers and students around the theme of the salon launched a lively discussion. Professor Yin Shaoping talked about on the work of the Supreme People,s Court. The teachers and students made some questions, Professor Shi Jichun one by one responded, and they discussed.

Professor Meng Yanbei thanked Professor Shi Jichun for this wonderful salon, and awarded a memorial plaque of the 86th professor salon to him. Salon ended in the warm applause.

£¨Editor: ZHAN Hefei£©¡¡

 
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