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From "folk first antitrust case" see "anti-monopoly law" of the implementation of

Author: LiuYunMeng From: www.yourpaper.net Posted: 2010-06-29 13:18:45 Read:
Keywords:   the antimonopoly law; folk first antitrust case economic constitution   ; the legitimate rights and interests of consumers
Abstract: since August 1, 2008, "anti-monopoly law" has some problems in the implementation process, has exposed some problems, these problems to a certain extent, reflects the law system is not perfect, the requirements on how to further improvement and development of "anti-monopoly law", this article only borrow "folk the first anti-monopoly case" to describe the concept and role of anti-monopoly law.
The concept and function, the anti-monopoly law
Anti-monopoly law known as the "economic constitution", is the prevention and suppression of monopolistic behavior, protect fair competition in the market and maintain the basic law of market order, but also improve the important legal market structure, guarantee the economic safety and ensure the basic role in allocating resources.The anti-monopoly law to safeguard the legitimate rights and interests of operators and consumers, promote technological innovation and technological progress, improve the competitiveness of enterprises, guarantee the health of the national economy, sustained and coordinated development, has the extremely important role.
Two, "civil first antitrust case"
"Anti-monopoly law" has been implemented since August 1, 2008, as the weak against the dominant strong prop up the umbrella to protect a law "".Netcom to become the first "anti-monopoly law" is directed at the.
1 Beijing lawyer Li Fangping implements the first day in August 1st of this year that "anti-monopoly law", to file a complaint to the Beijing Chaoyang District people's court, V. China Netcom (Group) Co., Ltd. Beijing branch (hereinafter referred to as Beijing Netcom) using its monopoly on the user to adopt different to, as in violation of "anti-monopoly law", asked to confirm Beijing Netcom discriminates the format of the terms of the contract notice and business law, and request the court to order the Beijing Netcom to accept its application for the "family 1 " business, and claims 1 yuan.After 1 months of "review" in September 18th, Chaoyang District court has formally accepted the case, the case became the country's first officially by the courts of the antitrust lawsuit, known as "Chinese folk first antitrust case".
Li Fangping said in the indictment, he from 1998 in Beijing since June, long-term work, life, is the household registration in the field of "new Beijing people".According to the provisions of the Beijing Netcom "service contract" second, "the customer a residence or place of registration is not in the city of Beijing, the customer shall handle the corresponding formalities according to Beijing Netcom guarantee requirements, or the handling of prepaid service (service)".And since they do not have a Beijing hukou, could also not to have a household registration in Beijing citizens as its guarantee, accept only the format of the contract stipulates that the second selected "prepaid service" so fixed phones in Beijing Netcom newspaper, and the general public for household registration in Beijing is "post-paid business" in Li Fangping's view, although the two only one word, but led him to launch in Beijing Netcom, a series of preferential tariff activities by the unfair treatment.
In 2007 May 2 Beijing Netcom's "love l " business as an example, there are many preferential packages and optional package, in particular the broadband preferential monthly bandwidth 1M, 2M.But according to Li Fangping, China Netcom in the business conditions of clearly defined only for ordinary fixed phone client management.This makes Li Fangping such as prepaid users can not be claimed by Netcom's "zero per month, call duration, value-added services, account co-payment" and many other preferential.In 2008 June, Beijing Netcom has launched a "family 1 " upgrade products, increased the new content of home gateway, network printing and warm with the number, but the prepaid users still can not enjoy the service.
According to Li Fangping introduction, this will be prepaid and postpaid subscribers between users of business types meet the eye everywhere in Beijing Netcom in the indictment, he is listed as much as 8.He believed that Beijing Netcom by virtue of its monopoly position in the Beijing area, the implementation of differential treatment for prepaid user violates the fair, equal, honest, credit principles of civil law, but also in line with "monopoly anti-monopoly law" seventeenth paragraph sixth, that "there is no reason is when, on the condition of the same transaction the relative person of discrimination in the transaction price and transaction conditions."
3 in this regard, Beijing Netcom said: "prepaid phone is a new business, none of which are better with the ordinary telephone service, just by the current platform equipment capacity constraints, only the first choice of non Beijing membership user trial.Because foreigners are relatively strong liquidity, debt recovery is difficult, so outsiders to install pre-paid phone is upset, not intentional discrimination foreigners.Beijing Netcom confirmed the prepaid service and post-paid business really enjoy preferential treatment was different, but not outsiders can not handle the post-paid business, just need a man with a Beijing Hukou guarantee.
The first "against" this is not Li Fangping and China Netcom, in 2007 May, as China Netcom users of Li Fangping has sued Beijing Netcom to use its monopoly position, a collection of high cost of the Internet, request the court to order the lower the access fee standards, but because the "anti-monopoly law" did not have, so there is no the legal basis, the case was eventually sentenced to losing.The case was "procuratorial daily" classified as "2007 China Law blue book" public welfare lawsuit first.
But Li Fangping thinks, "the implementation of the anti-monopoly law", the prospect is optimistic, he is very confident of victory.
The case is still in the process of trial.
On three, by case
I think, Beijing Netcom for no Beijing City ID people opened the first payment business may have the risk of arrears worry, can use many methods such as the deposit to ensure that their interests will not be harmed, but the household registration as a judge of civil credit degree standard no legal basis, but reflects the discrimination for foreigners and unfair treatment.Comply with the provisions of the sixth paragraph "anti-monopoly law" seventeenth, belonging to the "monopoly prohibited by the antitrust law" in "the abuse of market domination status", should be based on "anti-monopoly law" provisions of article 5O, shall bear civil liability according to law.
1 however, the problem is not so simple.In China, there has been a serious problem of monopoly industries.Oil, water supply, power supply, telecommunications, postal, railway, transportation, insurance and other industries and infrastructure business, legal, policy of the government as a talisman, limiting competition and against the interests of consumers, as a special industry monopoly.
A Beijing newspaper once carried out a dozen people in Beijing interview, respondents, when asked about their hearts of monopoly industry, most chose to railway, telecommunication or oil etc..These industry competition is not enough, the terms of overlord also from these industries, but because they are closely related with the daily life, so we feel helpless.
Therefore, only by "the industry monopoly anti-monopoly law" can't be solved, it needs coordination of "anti-monopoly law" and other laws and regulations, even the expert points out, depends on our system (including the political system, economic system reform) determination and degree.
2 in addition, in the absence of the detailed rules for the implementation of the lack of supporting the development of, nor can learn from the case and professional law enforcement personnel, "anti-monopoly law" is very huge in the current implementation difficulty, antitrust litigation in judicial practice, there are still many problems unsolved.This case, Professor of economics at the Beijing Institute of Technology, Hu Xingdou think, if the court ruled that Netcom Company violates the "anti-monopoly law", so in the specific details may meet l Pro "without any precedent", the court will make what kind of treatment, we don't know.In terms of the experience of the United States, the United States 1984~ telecommunications operator AT& indeed support decision exists monopoly, is the United States Department of justice is split into a new AT& T (franchise long-distance service) and 7 local telephone company.As for China, whether we can learn from the experience of America?
And the plaintiff qualification in the antitrust litigation how to define, if consumers can file an antitrust lawsuit, as well as in the "monopoly", how to allocate the burden of proof and so on, are yet to be clear problem.
The personage inside course of study points out, antitrust cases are generally more complex, economic and legal issues are intertwined, very professional, will have a huge impact on related businesses and industries, in some cases also may be involved in the country's economic security.The trial of such cases will be the future work to the people's court a challenging trial business, will increasingly become the focus of attention of the society.
Four, the conclusion
"The implementation of the anti-monopoly law" is still a great progress of China's legalization, believe that through continuous improvement and development, "anti-monopoly law" will truly play its expected role, make a great contribution to the development of our socialist market economy.
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