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独占禁止法研究会(旭鉱末事件)

曇り。風邪はなかなか抜けないが、仕事が立て込んでいるところに新たな急ぎの仕事が入り、風邪が気にならなくなってしまった。

午後の弁護士会の独占禁止法研修に引き続き夕方から独占禁止法研究会。
旭鉱末審決取消請求事件(東京高裁昭和61年6月13日)。
報告の先生は図を2枚準備し、丁寧に解説をしてくださったのだが、????。

旭の言い分を分析すると、契約の外形と実態とが少し違うのではないか。
契約は旭と大企業Sとの間でなされており、ある地区で採掘した石灰石を、その地区内で、旭はSの競業者に30年間販売しない、Sは旭の競業者に30年間販売しないという契約をした。
その契約条項が、独占禁止法に抵触するとされた。
しかし、実際には、旭は石灰石の粉末を扱っており、Sはセメントを扱っている。旭の競業者は実在するが、セメントの製造には大規模な投資が必要であり、その地区内にはSの競業者は存在しないし、今後も現れる見込みは薄い。Sは契約に違反して旭の競業者に販売しており、旭はSに損害賠償請求をしていた。
Sがこのような契約に応じた経過は、ある出来事でこの地区のSの事業がAの助けなしには進退きわまった状況に陥り、助けを求めたところ、この条項を承諾させられたらしい。
Sは大企業だが、Aはそうではなさそうな会社。旭は、存在しもしないSの競業者に販売しないと記載したのは、外形上対等を装うためだったと主張。

これがどうして独占禁止法にひっかかるのか、初心者の私にはさっぱりわからない。
裁判所は、30年が長すぎるとか、将来Sの競業者が現れる可能性がある、とか言うが。

仮に旭が勝ったところで、Sは最初から独占禁止法に抵触することを争っていないのだから、旭はSに対して契約を有効だと主張できるだろうか?
結局のところ、小さな会社が状況に乗じて大企業に同業者に原料を販売しないという契約を締結させたのに、契約に反して他社に原料を販売され、損害賠償請求をしたら、公取が出てきて、契約条項を無効とした、というふうに見えてしまう。
まさか、最初からそれを狙って、大企業が存在しもしない競業者に対して旭が販売しないという条項を入れておいたとも思えないが。

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