論拒絕交易反壟斷規制的立法完善──以原料藥反壟斷執法為切入點

On the Perfection of Legislation on Anti-Monopoly Regulation of Refusals to Deal: Starting from Anti-Monopoly Enforcement against Active Pharmaceutical Ingredient Sell

十年原料藥反壟斷執法特別是關於拒絕交易的執法整體上存在定性不准、說理不清、救濟乏力等問題，主要原因在於《反壟斷法》對拒絕交易的規制不完善。市場經濟條件下的每個經營者都應當有權自主選擇其交易對象、決定其交易條件，在經營者具有市場支配地位、擁有必需設施並拒絕其競爭對手使用該必需設施等少數例外情況下，反壟斷法才視其為違法。鑒於拒絕交易反壟斷規制立法不完善同樣使司法機關產生困惑，《反壟斷法》有必要進一步明確拒絕交易的違法要件，並完善相關救濟手段。

"Anti-monopoly decisions against active pharmaceutical ingredient sell during the decade from 2011 to 2020, especially that concerning refusals to deal, has generally revealed such problems as enforcement agencies’characterizing of anti-monopoly violations being uncertain, reasoning being not good and the remedy being not adequate enough to deter legal offence, which mainly result from imperfections as regards refusals to deal in the Anti-Monopoly Law of the People’s Republic of China . It is a fundamental principle that each undertaking should have rights to decide with whom to trade and in what terms a transaction is to be made. And only in exceptional cases where an undertaking with dominant market position possesses essential facility and refuses its competitors to utilize its essential facility, refusals to deal will constitute a legal offence. Given the imperfections in regulating refusals to deal in the Anti-monopoly Law , which make judiciaries create confusion, it is quite necessary for the Anti-monopoly Law to further clarify the illegal elements of refusals to deal and perfect the relevant remedies."