Abstract
<p align="center"><strong>Abstract</strong></p><p>This article aimed to find out and to give solution to the application of <em>rule of reason</em> and <em>per se illegal</em> approaches in solving the case of monopoly infringement and unfair business competition. This study was a doctrinal research with evaluative research form. The analysis used was deductive logic one. <em>Per se illegal</em> approach used by KPPU in making decision was based on deliberation and focused more on business behavior than on market situation. This <em>rule of reason</em> approach was an approach constructed based on an assumption that the high sale concentration in the presence of certain agreement between some business performers tend to result in substantial economic efficiency. Essentially, this <em>rule of reason</em> approach considered its economic benefit more than imposed restriction (prohibition). Standard <em>rule of reason</em> allows for the consideration of competitive factors and the determination of the feasibility of trading constraint. The recommendation of research was that: The use <em>per se illegal</em> and/or <em>rule of reason</em> in KPPU’s verdict should build on the objective of the development of Law No.5 of 1999, particularly the provision of Article 3, thereby can realize conducive business climate in the certainty of equal business opportunity for large, medium, and small scale employers, and the achievement of effective and efficient business activity. The application of <em>per se illegal</em> or <em>rule of reason</em> approaches in KPPU’s verdict was possible through the use of two approaches all at once, recalling very extreme difference of <em>per se illegal</em> and <em>the rule of reason</em>, and furthermore, most KPPU’s decision put its position between the two perspectives.</p><strong>Keywords </strong>: <strong><em>Per Se Illegal</em>, <em>the Rule of Reason</em>, Monopoly, Unfair Business Competition</strong>
Highlights
Entering the 1990 decade, Indonesia was faced with free trade demand including the establishment of AFTA (ASEAN Free Trade Agreement), GATT (General Agreement on Tariffs and Trade), WTO
Economic economy is getting more competitive recently, in which business performers attempt to be productive and existent dealing with trade and business, generating unethical business behavior among the mischievous employers taking any attempts of putting out their rival’s business activity, among others, through monopoly practice and unfair business competition
The objectives of Law Number 5 of 1999 (Sutan Remy Sjahdeni, 2002: 9) are included in the Article 3: a) to maintain the public interest and to improve the national economy efficiency as the attempt of improving public welfare; b) to realize a healthy business climate thereby ensuring the certainty of equal business opportunity for large, medium, and small- scale employers; and c) to prevent monopoly practice and/or unfair business competition generated by the business performers; and d) to create the effectiveness and the efficiency of business activity
Summary
Entering the 1990 decade, Indonesia was faced with free trade demand including the establishment of AFTA (ASEAN Free Trade Agreement), GATT (General Agreement on Tariffs and Trade), WTO The competition in business realm is a condition sine qua non for the organization of market economy. Unfair competition can put out the competition, and results in monopoly, meaning the mastery of more than 50% of marketplace over certain commodity by one or an affiliation of companies (Business Law Editorial, 2002: 4). Economic economy is getting more competitive recently, in which business performers attempt to be productive and existent dealing with trade and business, generating unethical business behavior among the mischievous employers taking any attempts of putting out their rival’s business activity, among others, through monopoly practice and unfair business competition. Law Number 5 of 1999 On the Prohibition of Monopoly Practice and Unfair Business competition has been enacted to realize a healthy business climate thereby ensuring the certainty of equal business opportunity for large-, medium-, and small- scale employers
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