竞争经济学对反垄断法律制度的影响

The influence of economics on modern antimonopoly law has been widely recognized and these influence can be classified into two categories: (1)Antimonopoly law aims at protecting competition, but why and to what extent does it protect competition, and what kind of competition it protects, are answered by economics; (2) Ever since 1960s, the influence of economics has extended into the micro-level of antimonopoly law and merged into its rules and their application, therefore became a part of antimonopoly law. These two kinds of influence are closely connected, and there should be different rules and enforcement according to different economic theories. In the early stage antimonopoly law was based on perfect competition theory, therefore it focused on the market structure and preferred to a market full of small enterprises which it regarded as essential to maintain perfect competition. But this was contrary to scale economy therefore was substituted by modern antimonopoly theories which recognized the importance of efficiency. But in the opinion of Harvard School, efficiency is the consequence of competition, it is competition which forces enterprises to reduce cost, to invest on development, to improve production, therefore the goal of antimonopoly law is to protect competition itself, or at least maintain the possibility of competition. As the conclusion of this theory, American antitrust law before 1970’s favored prospective structure adjustment which was too sensitive to the restrictive aspects of market conducts and too hostile to big enterprises, to maintain the conditions for effective competition. Many of the efficient market practices were prohibited. Chicago School prefers efficiency to competition as the aim of antimonopoly law, and competition is to be protected only when it is consistent with the improvement of efficiency. The fundamental standard to judge the legality of a conduct is whether it serves to increase production, or improve creation. Owing to this school, the efficiencies of various restrictive practices have been discovered and the restrictive effects were treated with more tolerance, in fact,they were treated too tolerantly since 1970’s because Chicago School believed that the restrictive effects could seldom lead to anti-competition effect. It underestimated the possibility that the anti-competition effects could be real problems under certain market conditions. Post-Chicago School agrees with Chicago School on the efficiency aspect, but as far as the self-adjustment ability of the market is concerned, it is not so optimistic. For example, Chicago School suggests predatory pricing is seldom or even impossible because of the great cost and the potential competition. But Post-Chicago School notices that potential competitors are not on call at any hour when they have to invest great sunk cost to enter the market, therefore predatory pricing is not as harmless as Chicago School has imagined. It also recognizes the importance of structure analysis, but contrary to the way of Harvard School, it does not take this analysis as the decisive step in the judgment of the legality, but as the first step which aims at excluding the practices which are lack of the essential market power to damage competition. By the large, the theory of Post-Chicago School is the compromising of those of the other two and is now playing a more and more important role in modern antimonopoly law.