高新技术产业领域中的反垄断问题研究

【作者】 张卫东；

【导师】 王先林；

【作者基本信息】 安徽大学 ， 经济法学， 2005， 硕士

【摘要】 本文从高新技术及其产业的内涵着手,阐明了高新技术产业的发展状况。然而,同传统产业一样,高新技术产业在迅速发展的同时,也出现了企业限制竞争的情形。在这种情形下,现实提出了两个问题,即反垄断法是否适用?如果适用的话,反垄断法应适用到什么程度,尤其是对于其产品和服务主要是由知识产权来维系的企业?本文在第一部分对第一个问题进行了初步思考。本文认为,反垄断法应当适用于高新技术产业,但是,反垄断法在实施时需对一些细微问题进行调整,以使之更好地适用于高新技术产业的特殊情况。这些问题,本文归纳为六个方面,即技术问题、市场的发展变化速度、企业之间的合作、进入壁垒、产量和价格的影响、网络效应。由于各国反垄断法一般都是由禁止联合限制竞争制度、禁止滥用市场支配地位和控制企业结合制度三个最基本的方面组成,本文分别以第二、第三、第四部分就禁止联合限制竞争制度、禁止滥用市场支配地位和控制企业结合制度在高新技术产业领域中的适用,对第二个问题进行了回答。禁止联合限制竞争制度在高新技术产业领域中的适用,主要体现在对合作研究与开发新技术中的限制性协议的规制方面。在该部分,本文翻译介绍了欧盟的第2659/2000号法规和美国的国家合作研究与生产法案。通过这两部法律,我们可以看出,欧盟和美国对研究与开发中限制性协议采取的是一种相对宽容的态度。然后,本文对合作研究与开发中限制性协议进行了反垄断分析。通过分析,本文认为,一国的反垄断法在适用于高新技术产业时,须考虑其国家的经济政策,特别是其中的产业政策,合理界定相关产品市场和相关地理市场,并且对合法的限制性协议予以豁免。禁止滥用市场支配地位在高新技术产业领域中的适用,主要体现在对合作研究与开发中创新垄断的规制方面。在该部分,通过对欧盟和美国对创新垄断的执法(包括司法)实践,本文认为,对创新垄断采取的相对宽容的态度符合世界反垄断执法潮流。作为创新垄断的一个典型例子,本文对网络效应进行了进一步分析,并对网络效应内部化予以了研究。在控制企业结合制度在高新技术产业领域中的适用,主要体现在对合作研究与开发新技术中创新市场合并的规制方面。在该部分,本文首更多还原

【Abstract】 This text sets about from the meaning of new and high technology and industry, current situation of the development, have expounded like other industries, there is a situation that enterprises limit the competition in this industry, too. To this kind of situation, reality has put forward two questions, is the antimonopoly law applicable to this industry? If it is suitable, antimonopoly law should apply to what extent as it does, especially to those enterprises whose product and service come to maintain mainly by intellectual property right? This text thinks tentatively to go on to the first question at first partially. This text thinks, the antimonopoly law should apply to the new high-tech industry, but, some slight problems need adjusting while the antimonopoly law implements, so that they suit for special circumstances of new high-tech industry better. These questions, this text sums up for six respects of the technological issues, pace of change of development of the market enterprise cooperation, entry barrier, the influence of the output and price and network effects. Because the antimonopoly laws of various countries are usually made of three most basic respects, forbidding jointly limiting the competition system, abusing the position of arranging of market and controlling of system of combining of enterprises. This text analyze forbidding jointly restraining competition system , abusing market status of arranging and controlling enterprise system of combining in new high-tech industry in the second, third, the fourth part separately , which has answered the second question. The ones that forbidding jointly limiting the competition system in the field of new high-tech industry are suitable, reflect it in the structure to the restricted agreement in the new technology of cooperative research and development mainly. In this part, this text translates regulation and the national joint study of U.S.A. and production bill No. 2659/2000 of introducing European Union, through these two laws, we can find out, it was a kind of comparatively tolerant attitude that European Union and U.S.A. took the restricted agreement while studying and developing. Then, this text has carried onanti-monopoly analysis to the restricted agreement in cooperative research and development. This text thinks, the antimonopoly law of one country, while applying to the new high-tech industry, must consider the economic policy of its country, especially the industrial policy among them, define relevant product markets and relevant geographical markets rationally, and exempt the legal restricted agreement. The ones that forbidding abuse market status of arranging among new high-tech industry field are suitable, reflect it in innovating the structure monopolized to cooperative research and development mainly. In part this, this text practise to study through European Union and law enforcement (include administration of justice ) of U.S.A. separately and anti-monopoly monopolized to analyze innovating in developing, this text think, it accords with to cooperative research and development structure monopolized to innovate world anti-monopoly enforce the law the trend to take the attitude of relenting. As the typical example of innovating monopolized, this text has been analyzed further to the network effects, and has carried on research to the network effects. The ones that controlled the system of combining of enterprises in the field of new high-tech industry are suitable, reflect it to the structure that the innovative market amalgamates in the new technology of cooperative research and development mainly. In this part, this text has defined the innovative market at first, then, this text has amalgamated with innovative market while developing and carried on anti-monopoly analysis to joint study. Through the analysis of" antitrust guide that the intellectual property right permits " and " antitrust guide conspired about the competitors " to U.S.A., this text think, it may produce or strengthen market monopolization strength to amalgamate, promote enforcement, market monopolization of strength, however, if amalgamate and control innovation , may influence the going on of innovation . So, it is necessary to amalgamate and establish the antitrust safety zone for the legal innovative market. In the fifth part, this text is to image the antitrust legislative discussion in the field of new high-tech industry of our country. In this part, the analysis on our country’s current relevant legislation at first of this text, this text thinks, our country current system perfect. The existentanti-monopoly of new high-tech industry legislation is simple, a lot of fields are also stored in the legislative blank, and it is so scattered that the anti-monopoly of the existing new high-tech industry of our country legislates, and not systematic. Then, this text legislates to carry on the basic idea to the anti-monopoly of the new high-tech industry of our country. This text think our country antitrust regulation make restriction behavior of competition of new high-tech industry in the future, should come to consider from two respects of the procedure law and substantive law . From the point of view of procedure law, three questions need considering, namely introduce experts and participate in the hearing system of handling the system and new and high technology case of the case , implement single times of compensation for damage system to restriction competition compensation for damage , new high-tech industry of field. From the point of view of substantive law, three questions need considering too , namely amalgamate with the restricted agreement, innovative market while developing in studying and give the structure and give internalization to the network effects.更多还原