反垄断法中合理原则的适用范围及评判标准

合理原则和本身违法原则是反垄断法的两大基本原则,被用来认定垄断行为是否成立。目前,合理原则的适用范围、适用方法和评判标准都尚未形成相对统一且具有可操作性的方案,这直接导致其在现实中的作用大打折扣。文章将合理原则的适用范围限定为部分横向协议、纵向非价格约束、合并或联营、附属性限制这四种情形。遗憾的是,当前的研究成果都只是列举了适用合理原则的考察标准,却未对其进行重要性排序,这种作法并不符合司法效率原则。因此,文章将目的要件作为适用合理原则的主要标准,目的要件和限制竞争行为的必要性作为次要标准,而进入壁垒则基本不予考虑。笔者认为,将合理分析的方法规则化对我国《反垄断法》十分有利,并对此提出相关建议。

The Range and Criteria of the Rule of Reason in the Antitrust Laws

The rule of reason and the per se rule are two basic principles of antitrust law and they are used to identify the establishment of monopolistic behaviors. By the judicial practice of the United States＇ antitrust law, the rule of reason was formed and improved. Although the rule of reason is attached more importance to, its scope and criteria are still vague and unpractical, thus playing a minor role in the judicial practice. This paper introduced the origin and the theoretical basis of the rule of reason and limited its scope to some horizontal agreements, vertical non-price constraints, merger or joint venture, subsidiary restrictions. On the other hand, current theories only cite some elements of the rule of reason this paper regarded consequence as the main criterion, purpose as the secondary standard, while entry barrier was hardly considered. The author believed that antitrust laws would benefit from the methods of rational analysis and some valuable suggestions were put forwarded.