An Analytical Study on the Problems Concerning Extraterritorial Application of Chinese Anti-Monopoly Law

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 21권 / 2호 / 181 ~ 205페이지
· 저자명 : DING Li-ming

초록

With the development of global economy, the economic activity of one state would inevitably form into part of international economic cycle．The monopoly activity occurs inside one state’ territory would have negative effect on another state．However, based on the tradition territorial jurisdiction，the anti-trust law is a legal system to protect competition in the domestic market so its effect scope can only reach the territory of its sovereign jurisdiction．The contradiction between the globalization of economic activity and the localization of law is something every state has to be faced with．It is the same case at the field of anti-trust law．The extraterritorial application of anti-trust law is a possible solution．Regarding this issue，US，EU and other states or regions have already established their own theories and put them into practice．In 1945，the U．S court ruled the Sherman Act can be applied to the foreign enterprise．After that, relying on the “effect doctrine”，the U．S courts apply its anti-trust law extraterritorially in order to punish the foreign enterprises．

Under Chinese law, the rule regarding the extraterritorial application of anti-trust law is the article 2 of Anti-trust Law．Since this rule is comparatively simple so it needs to be improved．To diminish the confliction and achieve a better enforcement, we should do something which includes five aspects at least：First, continuously improve the scientificity and transparency of Chinese Anti-Monopoly Law enforcement system; ensure the verdict basis is accurate and theories applied are scientific; enhance the persuasiveness of verdicts. Second, the effect principle must be applied with the interest-balancing principle or applied rationally. Third, respect other countries’ traditional monopolies and avoid challenges in these areas. Fourth, Strengthen the Anti-Monopoly Law cooperation with other countries in order to enhance China's ability to enforce Anti-Monopoly Law extraterritorially. Last, Academicians and law enforcement bureaus should focus on the extraterritorial application of Anti-Monopoly Law system’s researches to provide a theoretical basis for practice.

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