论美国反垄断法本身违法与合理原则及其借鉴-经济法学专业论文.docxVIP

II II Abstract Per se illegal and the rule of reason are two important principles of the United States in the development of long-term anti-monopoly judicial practice. These two principles are collectively referred to as the Illegal confirmation principle of anti-monopoly law. Antitrust law is an important legal regulating market competition; Westerners call it the economic constitution. However, antitrust law has inherent uncertainties, mainly in three areas: the uncertainty of the language, the monopoly itself and the anti-monopoly value targets. The uncertainty of the antitrust law determines that the activities of antitrust law explanation are very important for the implementation of the antitrust law. In the beginning of the Sherman Act, Simplistic legal provisions and the complex economic activities make the Sherman Act almost does not have any practical guidance and operability. In this context, the court enabled the rule of reason to analyze cases, in order to make a mechanical explanation to “trade restrictions”. However, the rule of reason study focused on the purposes of conduct and consequences, this increases the cost of judicial review, coupled with the long-term judicial practice, the court found that certain types of behavior must be illegal, so the court classified this type of behavior to the per se illegal activities. In fact the application of the rule of reason and per se rule in antitrust cases in the United States was not a clear, entirely different state. It is constantly evolving. Now, only some monopoly agreements which closely related to the price will be considered necessarily illegal. If an act can’t be classified per se illegal, then, It will be applicable to the rule of reason. But the complex economic analysis and the high cost force court to make Innovation, it is the simple rule of reason. Chinese Antitrust law implemented in 2008, the lack of anti-monopoly legislation and judicial experience make the law is full of obstacles in the