轉售價格維持的本土化探析：理論衝突、執法異化與路徑選擇

Localized Enforcement against Retail Price Maintenance: Conflictive Theories, Enforcement Diversity and Possible Solutions

我國《反壟斷法》中的轉售價格維持正在面臨著本土化移植的兩難困境。該行為在經濟學中具有兩種對立的理論，在實務界存在歐美兩套迥異的執法模式。這些衝突誘發了我國反壟斷執法的異化，即行政執法機構與司法機構各執一端、各行其是。該問題的法學癥結在於我國《反壟斷法》對於由誰來承擔該行為具有排除限制競爭效果的舉證責任規定不明。本文發現司法機構的做法雖然合理，卻不合法；行政執法機構的做法雖然合法，但不合理。最後，本文對我國《反壟斷法》的本土化制約性要素進行分析，提出了轉售價格維持的本土化執法路徑，即由行政執法機構或原告來承擔該行為具有排除限制競爭效果的舉證責任。

The enforcement against resale price maintenance (RPM) is being confronted with a dilemma in China. The Complexity of RPM lies in that on the one hand it is interpreted under two opposite schools of economics, and on the other hand it is enforced with two models represented respectively by the EU and the US. Such a controversy renders an enforcement diversity between competition agencies and justice. Legislative transplant must be built upon localized restrictive factors, of which compliance with local legal system remains the key. It is the crux that the Anti-Monopoly Law (AML) remains silent on who should bear the burden of proof for anti-competitive effects of RPM. This article observes that the practice of justice, though economics-oriented, is not compatible with the AML; and to the contrary, competition agencies' practice is compatible with the AML, and is nevertheless not economically reasoned. Finally, it approaches the discussion strictly based on the existing legal framework within the AML, and proposes a localized solution that competition agencies or plaintiffs should bear the burden of proof.