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我国《反垄断法》草案几经易稿已接近立法审议阶段,国内学界应加强对垄断行为判定规则的研究,才能满足未来司法实践的迫切需求。通过历史回溯和比较分析可知,在判定某行为是否构成垄断时,合理规则根据行为后果的多种因素考量,本身违法规则根据行为的特定类型作出直接判定。该套规则是适应反垄断司法资源有限性与案件事实复杂性这一基本矛盾的产物,二者的适用范围随着人们对垄断行为特性认识的深入而彼涨此消。
Several draft versions of the Anti-monopoly Law in China are close to the stage of legislative deliberation, and the domestic academic circles should strengthen the research on the rules for determining the monopoly act in order to meet the urgent needs of future judicial practice. Through historical backtracking and comparative analysis, we can see that in judging whether a certain act constitutes a monopoly, rational rules are directly judged according to many factors of behavior consequences and their own illegal rules are based on the specific types of behaviors. This set of rules is the product of the basic contradiction between the limited resources of the antitrust justice resources and the factual complexity of the case. The scope of application of these two rules is increasing as people become aware of the monopoly behavior.