 Both monopoly and unfair competition are anti-competition behaviors of business operators that violate trade order and code of business ethics. They have a double whammy for the market, not only undermining the normal market competition but also prejudicing the interests of other business operators as well as consumers. Monopoly limits the freedom of business operators that compete in the market and therefore, destroys the competition itself. Meanwhile unfair competition undermines the fair order of competition. The aforementioned commonalities and differences lead to the concurrence between the Anti-Monopoly Law and Anti-Unfair Competition Law in one hand and their different focusses in the other hand, explaining why the draft amendment to the Anti-Unfair Competition Law (the Draft) announced by the Legislative Affair Office of the State Council in February 2016 has attracted wide attention of anti-monopoly fraternity.1. Introduction of relatively dominant position Article 6 of the Draft, which could be the provision mostly affecting anti-monopoly area, provides that a business operator shall not use its relatively dominant position to restrict its counterparty’s transaction objects, commodities, terms and conditions with others without justifiable reasons; request excessive fees; unreasonably request other economic benefits from its counterparty; or attach any other unreasonable trade terms. Relatively dominant position refers to the dominant position of a business operator in a specific transaction in terms of funds, technologies, market entry, sales channel, procurement of materials etc. on which the counterparty depends and is not able to turn to other business operators. In light of the definition, relatively dominant position shows concurrence with dominant market position as both of them emphasise the market power of the business operator. For example, a business operator with relatively dominant position normally possesses the advantages in funds, technology and market entry, while determination of dominant market position would consider the business operator’s financial and technical capabilities and the degree of difficulty for other business operators to enter the relevant market. Moreover, the two positions share a concurrent key criteria which is the dependency of the counterparty on the business operator. In spite of the aforementioned concurrence, the relatively dominant position has a lower threshold compared to the dominant market position. To determine dominant market position requires, first of all, identifying the relevant market and then considering the competition status of the relevant market and proving the market share of the business operator with monopoly behaviors. In practice it is quite burdensome for the counterparty seeking protection under the Anti-Monopoly Law to identify relevant market and prove market share. However, relatively dominant position does not require the identification of the relevant market or market share but focusses on ‘relatively’, underlining the market power comparison between the business operator and its counterparty in a specific transaction. Therefore, theoretically, the lower threshold of relatively dominant position may reduce the cost of counterparty seeking protection and remedy. 2. Deletion of regulations on certain monopoly behaviors 3. Other attractions 反壟斷視角下的《反不正當競爭法》修改草案送審稿 壟斷和不正當競爭行為都是市場經營者在市場競爭過程中違反交易秩序、商業道德准則所實施的反競爭行為，它們均具有雙重損害性，既損害正常的市場競爭，也損害其它經營者和消費者的利益。壟斷行為破壞自由競爭本身，限制經營者在市場上自由參與競爭的權利﹔不正當競爭破壞的是公平的市場競爭秩序，從而損害合法經營者和消費者的權益。壟斷和不正當競爭行為的共性和區別使《反壟斷法》與《反不正當競爭法》之間既有競合，又各有側重。有鑒於此，2016年2月國務院法制辦公室公布的《反不正當競爭法》修改草案送審稿（“送審稿”），引起了反壟斷界的廣泛關注。本文將對送審稿對反壟斷領域的影響進行解讀。 1. 引入相對優勢地位，降低交易相對方的維權成本。 2. 刪除部分由反壟斷法規制的不正當競爭行為，進一步協調與反壟斷法的關系。 3. 其它亮點 ––––––––– |
Overview of draft amendment to the Anti-Unfair Competition Law from anti-monopoly perspective
