中美经营者集中附加限制性条件制度比较研究
发布时间：2019-04-18 08:01
【摘要】：经营者集中或者说企业合并,往往限制竞争和促进竞争的效果并存。很多国家的反垄断执法机构采取附条件批准经营者集中,既扶持经营者扩大经营规模以充分竞争,又防止破坏市场竞争而保持市场的创新活力。经营者集中附加限制性条件在美国被称为‘'Merger Remedies"(合并救济),实质上,附加限制性条件是合并救济或者说经营者集中救济的一种形式。对于利弊兼有的经营者集中,附加限制性条件批准是直接禁止和无条件批准之间的最佳状态,需遵循必要性、充分性、有效性、消费者福利、与产业政策的协调、透明和可预期性等六项原则。1976年美国《哈特-斯各特-罗迪诺反垄断改进法》的颁行标志经营者附加限制性条件制度的确立,之后美国在各方面均有所发展。中国也在2007年《反垄断法》第29条中确立了该制度。 美国反垄断执法机构是美国联邦贸易委员会和司法部反托拉斯局。中国反垄断执法机构有三家,商务部反垄断局具体负责经营者集中反垄断审查。美国的私人原告也有执法权,其私人执行发达,中国的私人执行欠缺。附加限制性条件分为结构性条件和行为性条件,结构性条件被普遍视为优先选择的条件,美国官方多次表明结构性条件的优先性,但近年来也有对行为性条件的肯定。中国在实践中对结构性条件谨慎选用,而对行为性条件的适用持相对开放的态度。条件具体适用时需要评估,在具体评估时,获取信息和评估信息是重要工作,方法多样,市场测试是常用的方法。总体程序构造上,美国是司法化的,而中国是行政化的。具体程序实施上,附加限制性条件实施前先要把条件确定下来,而条件的确定始于条件建议的提出。限制性条件建议一般由交易当事人提出,再由执法机构进行评估、审查。监督受托人的设置是条件实施时必不可少的,监督受托人需要具备相应的资质,并履行法定职责。美国明确了监督受托人可以由执法部门指定的情形,而中国立法缺少对指定监督受托人的规定。 中国经营者集中附加限制性条件制度的立法、执法已经取得巨大进步,但仍存在不足,可以进一步完善。比之美国,中国在经营者集中附加限制性条件制度存在的不足有：执法主体上的私人执行不完善,实体规范上的行为性条件立法欠缺,程序规范上的执法信息透明度不高、行政裁决程序容易导致执法偏离的问题和对于监督受托人选择的规定不完善。针对以上不足,需要在执法主体上完善私人执行,实体规范上完善行为性条件的立法,程序规范上增加信息透明度,促进司法化程序改革和完善监督受托人选择的立法。
[Abstract]:Concentration of operators or merger of enterprises, often restrict competition and promote the effect of competition co-exist. In many countries, the anti-monopoly law enforcement agencies adopt conditional approval to centralize the operators, which not only supports the operators to expand the scale of operation in order to compete fully, but also prevents the disruption of market competition and maintains the innovation vitality of the market. The restrictive conditions of concentration of operators are called 'Merger Remedies' in the United States. In essence, the additional restrictive conditions are a form of consolidated relief or centralized relief of operators. For the concentration of operators with both pros and cons, approval with restrictive conditions is the best condition between direct prohibition and unconditional approval, and must follow the necessity, adequacy, effectiveness, consumer welfare, and coordination with industrial policies. Six principles of transparency and predictability. After the establishment of the restrictive conditions system for the issuing mark operators of the Hart-Scott-Rodino Anti-Monopoly improvement Act in 1976, the United States has developed in all aspects. China also established the system in Article 29 of the Anti-monopoly Law of 2007. The US antitrust enforcement agency is the Federal Trade Commission and the Department of Justice's Antitrust Bureau. There are three anti-monopoly enforcement agencies in China, and the Anti-monopoly Bureau of the Ministry of Commerce is specifically responsible for centralized anti-monopoly review of operators. American private plaintiff also has the right to enforce the law, its private execution is developed, and China's private enforcement is lacking. The additional restrictive conditions are divided into structural conditions and behavioral conditions. Structural conditions are generally regarded as the conditions of preference. American officials have repeatedly indicated the priority of structural conditions, but in recent years there has also been a affirmation of behavioural conditions. In practice, China is cautious about structural conditions and relatively open to the application of behavioral conditions. It is important to obtain information and evaluate information when the conditions are applied. Market testing is a commonly used method, and it is very important to obtain information and evaluate information. Overall procedural structure, the United States is judicial, and China is administrative. In the implementation of the specific procedure, the conditions must be determined before the implementation of the additional restrictive conditions, and the determination of the conditions begins with the proposal of the conditions. Restrictive proposal is generally put forward by the parties to the transaction, and then assessed and reviewed by the law enforcement agency. The establishment of supervision trustees is necessary for the implementation of conditions. Supervision trustees need to have the corresponding qualifications and perform their statutory duties. The United States specifies the circumstances in which supervisory trustees can be designated by law enforcement agencies, while Chinese legislation lacks provisions for appointing supervisory trustees. China's legislation on centralizing restrictive conditions for operators has made great progress in law enforcement, but there are still shortcomings that can be further improved. Compared with the United States, there are some deficiencies in the system of imposing restrictive conditions on the concentration of operators in China: the private execution of the main body of law enforcement is imperfect, the legislation of behavioral conditions on substantive norms is lacking, and the transparency of law enforcement information in procedural norms is not high. The administrative adjudication procedure is easy to lead to the problem of law enforcement deviation and the regulation of supervising trustee selection is not perfect. In view of these shortcomings, it is necessary to perfect the legislation of private execution in the subject of law enforcement, to perfect the legislation of behavior condition in the entity norm, to increase the transparency of information in the procedure norm, to promote the reform of judicial procedure and to perfect the legislation of supervising the choice of trustee.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D971.2;D922.294
本文编号：2459884
[Abstract]:Concentration of operators or merger of enterprises, often restrict competition and promote the effect of competition co-exist. In many countries, the anti-monopoly law enforcement agencies adopt conditional approval to centralize the operators, which not only supports the operators to expand the scale of operation in order to compete fully, but also prevents the disruption of market competition and maintains the innovation vitality of the market. The restrictive conditions of concentration of operators are called 'Merger Remedies' in the United States. In essence, the additional restrictive conditions are a form of consolidated relief or centralized relief of operators. For the concentration of operators with both pros and cons, approval with restrictive conditions is the best condition between direct prohibition and unconditional approval, and must follow the necessity, adequacy, effectiveness, consumer welfare, and coordination with industrial policies. Six principles of transparency and predictability. After the establishment of the restrictive conditions system for the issuing mark operators of the Hart-Scott-Rodino Anti-Monopoly improvement Act in 1976, the United States has developed in all aspects. China also established the system in Article 29 of the Anti-monopoly Law of 2007. The US antitrust enforcement agency is the Federal Trade Commission and the Department of Justice's Antitrust Bureau. There are three anti-monopoly enforcement agencies in China, and the Anti-monopoly Bureau of the Ministry of Commerce is specifically responsible for centralized anti-monopoly review of operators. American private plaintiff also has the right to enforce the law, its private execution is developed, and China's private enforcement is lacking. The additional restrictive conditions are divided into structural conditions and behavioral conditions. Structural conditions are generally regarded as the conditions of preference. American officials have repeatedly indicated the priority of structural conditions, but in recent years there has also been a affirmation of behavioural conditions. In practice, China is cautious about structural conditions and relatively open to the application of behavioral conditions. It is important to obtain information and evaluate information when the conditions are applied. Market testing is a commonly used method, and it is very important to obtain information and evaluate information. Overall procedural structure, the United States is judicial, and China is administrative. In the implementation of the specific procedure, the conditions must be determined before the implementation of the additional restrictive conditions, and the determination of the conditions begins with the proposal of the conditions. Restrictive proposal is generally put forward by the parties to the transaction, and then assessed and reviewed by the law enforcement agency. The establishment of supervision trustees is necessary for the implementation of conditions. Supervision trustees need to have the corresponding qualifications and perform their statutory duties. The United States specifies the circumstances in which supervisory trustees can be designated by law enforcement agencies, while Chinese legislation lacks provisions for appointing supervisory trustees. China's legislation on centralizing restrictive conditions for operators has made great progress in law enforcement, but there are still shortcomings that can be further improved. Compared with the United States, there are some deficiencies in the system of imposing restrictive conditions on the concentration of operators in China: the private execution of the main body of law enforcement is imperfect, the legislation of behavioral conditions on substantive norms is lacking, and the transparency of law enforcement information in procedural norms is not high. The administrative adjudication procedure is easy to lead to the problem of law enforcement deviation and the regulation of supervising trustee selection is not perfect. In view of these shortcomings, it is necessary to perfect the legislation of private execution in the subject of law enforcement, to perfect the legislation of behavior condition in the entity norm, to increase the transparency of information in the procedure norm, to promote the reform of judicial procedure and to perfect the legislation of supervising the choice of trustee.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D971.2;D922.294
【参考文献】
相关期刊论文 前10条
1 胡健;;反垄断法中“经营者集中”的立法解读[J];安徽大学法律评论;2008年01期
2 姜发根;;经营者集中反垄断法控制的实体法论——兼评《中华人民共和国反垄断法(草案)》第四章[J];安徽广播电视大学学报;2007年03期
3 丁茂中;;论我国经营者集中控制标准的立法不足[J];北方法学;2008年03期
4 王健;;反垄断法私人执行的优越性及其实现——兼论中国反垄断法引入私人执行制度的必要性和立法建议[J];法律科学(西北政法学院学报);2007年04期
5 王健;;反垄断法私人执行制度初探[J];法商研究;2007年02期
6 方小敏;;经营者集中申报标准研究[J];法商研究;2008年03期
7 王晓晔;;《中华人民共和国反垄断法》中经营者集中的评析[J];法学杂志;2008年01期
8 邱春霖;;论反垄断法中附条件批准经营者集中制度[J];法治研究;2009年10期
9 傅明;;附加条件是否有助反垄断——附加条件设置与执行监督[J];上海国资;2009年11期
10 韩伟;;企业合并反垄断审查中的行为救济[J];东方法学;2013年05期
相关博士学位论文 前3条
1 袁日新;经营者集中救济研究[D];辽宁大学;2010年
2 马云鹤;反垄断法资产剥离制度研究[D];辽宁大学;2011年
3 韩伟;经营者集中附加限制性条件法律制度研究[D];中国社会科学院研究生院;2012年
，本文编号：2459884
本文链接：https://www.wllwen.com/falvlunwen/fashilw/2459884.html
