我国经营者集中申报标准法律问题研究
发布时间：2019-02-18 08:53
【摘要】：经营者集中申报标准,是经营者集中申报制度的起点,直接决定着一项经营者集中行为是否以及如何确定是否需要向反垄断执法机构提出申报,并在形式上起着集中经济效益与垄断风险的平衡效用。国务院于2008年《反垄断法》颁布实施后的第三天就出台了《关于经营者集中申报标准的规定》,后又得益于商务部逾6年的努力,在我国确立了以“双重可选择营业额申报标准”为基础的一套申报标准。但由于反垄断立法经验上的不足以及盲目学习欧盟立法,目前我国集中申报标准在适用对象、一般以及特殊性申报标准的法律规定上,还存在着适用狭隘、标准结构单一、数额僵化低下以及豁免标准缺失等诸多问题,并由此产生了经营者申报不规范、行政审查资源浪费以及申报标准与产业政策冲突等多方面的危害。借助在广东省商务厅反垄断处的工作经历,以及与平安保险、徐福记、TCL、波尔亚太等多位参与过经营者集中申报的法务主管就申报标准问题的交流经验,笔者尝试从申报实务出发,对我国现有的申报标准进行全面的审视,发掘以及分析潜藏其中的法律问题及危害,并分析解决这一问题的效用。就具体的解决方案而言,首先可以结合美欧等国家或地区申报标准的立法经验,对现有分散的申报标准立法体例进行整合;其次需要适度扩张申报的适用范围;再次需要对一般性申报标准进行改造,构建以市场份额标准为前置的“依集中类型的双重可选择营业额申报标准”;最后需要对特殊性申报标准中存在的具体问题进行修订,特别是做出细化规定。
[Abstract]:The standard of centralized reporting of operators is the starting point of the centralized reporting system of operators, which directly determines whether and how to determine whether or not to file a declaration with antitrust law enforcement agencies. And in the form of centralized economic benefits and monopoly risk balance utility. The State Council issued the regulations on the criteria for centralized reporting of operators on the third day after the enactment of the Anti-monopoly Law in 2008, and benefited from the efforts of the Ministry of Commerce for more than six years. A set of declaration standards based on double optional turnover declaration standard has been established in China. However, due to the lack of experience in antitrust legislation and blind study of EU legislation, at present, there is a narrow application and single standard structure in the applicable object, general and special legal provisions of the standard of centralized declaration in our country. There are many problems such as ossification of amount and absence of exemption standard, which result in non-standard declaration of operator, waste of administrative review resources, conflict between declaration standard and industrial policy, and so on. With the help of his working experience in the antitrust office of the Guangdong Provincial Commerce Department, as well as the exchange of experience on the issue of reporting standards with a number of legal executives who have participated in centralized reporting by operators, such as Ping an Insurance, Xu Fu Ji, TCL, Boer Asia Pacific, etc. The author tries to examine the existing declaration standards in our country comprehensively, explore and analyze the hidden legal problems and harm, and analyze the utility of solving this problem. As far as specific solutions are concerned, first of all, we can combine the legislative experience of countries or regions such as the United States and Europe to integrate the existing scattered legislative style of reporting standards, and secondly, we need to expand the scope of application of declaration moderately. Thirdly, it is necessary to reform the general declaration standard and construct the "double optional turnover declaration standard according to the centralized type", which is based on the market share standard. Finally, the specific problems existing in the special declaration standard should be revised, especially the detailed provisions.
【学位授予单位】：暨南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.294
本文编号：2425693
[Abstract]:The standard of centralized reporting of operators is the starting point of the centralized reporting system of operators, which directly determines whether and how to determine whether or not to file a declaration with antitrust law enforcement agencies. And in the form of centralized economic benefits and monopoly risk balance utility. The State Council issued the regulations on the criteria for centralized reporting of operators on the third day after the enactment of the Anti-monopoly Law in 2008, and benefited from the efforts of the Ministry of Commerce for more than six years. A set of declaration standards based on double optional turnover declaration standard has been established in China. However, due to the lack of experience in antitrust legislation and blind study of EU legislation, at present, there is a narrow application and single standard structure in the applicable object, general and special legal provisions of the standard of centralized declaration in our country. There are many problems such as ossification of amount and absence of exemption standard, which result in non-standard declaration of operator, waste of administrative review resources, conflict between declaration standard and industrial policy, and so on. With the help of his working experience in the antitrust office of the Guangdong Provincial Commerce Department, as well as the exchange of experience on the issue of reporting standards with a number of legal executives who have participated in centralized reporting by operators, such as Ping an Insurance, Xu Fu Ji, TCL, Boer Asia Pacific, etc. The author tries to examine the existing declaration standards in our country comprehensively, explore and analyze the hidden legal problems and harm, and analyze the utility of solving this problem. As far as specific solutions are concerned, first of all, we can combine the legislative experience of countries or regions such as the United States and Europe to integrate the existing scattered legislative style of reporting standards, and secondly, we need to expand the scope of application of declaration moderately. Thirdly, it is necessary to reform the general declaration standard and construct the "double optional turnover declaration standard according to the centralized type", which is based on the market share standard. Finally, the specific problems existing in the special declaration standard should be revised, especially the detailed provisions.
【学位授予单位】：暨南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.294
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