Abstract Based on the concept of concentration of business operators to define, analyze business concentration manifestations.Turn on the anti-monopoly law in the concentration of business operators reporting standards, review of legal regulation on the demonstration, which was found deficiencies and make recommendations to improve the legal regulation can better play its role in maintaining competition in the market.
Paper Keywords concentration of business operators declare Review
Business concentration of economic activity in each country there is a phenomenon, which is the operator to develop new markets or enter new markets, enhance its economic strength in a way. It should be said to some extent, a certain concentration of business operators can improve economic efficiency, increase as the operator's competitiveness in the market. However, due to the concentration of certain occupied a dominant market position, making some hinder fair competition and harm consumers' legitimate rights and interests of the phenomenon. Therefore, on the concentration of business operators become the world an important object of legal regulation, in our country, business concentration and monopoly agreements, abuse of dominant market position with a 'antitrust' regulation of important content.
Second, the concept of concentration of business operators
In general, the 'concentration of undertakings' means to get control of the business or from the enterprise for the purpose of obtaining significant economic benefits, through mergers, share purchase, asset purchase, the implementation of operating agreements, etc. have a significant impact on the competitive behavior. However, due to the different economic development levels and competition policy, with regard to the definition of this concept is the existence of differences.
United States, 'Clayton Law' Article 7 states: 'engaged in commerce or in any activity affecting commerce who are not directly engaged in commercial or indirect possession of other commercial activities affecting all or part of a person's stock or other share capital and the Federal Trade Commission under the jurisdiction of any person not engaged in commercial or affect the possession of other people's business activities all or part of the assets, if the possession of substantially lessen competition or to create a monopoly. '
EU's 'focus on the regulation of the behavior of enterprises Council Regulation' on page 3 the concentration of business operators is defined as: 'Two or more previously independent enterprises merge behavior; or at least have a business dominated one or one or more individuals or enterprises, through the purchase of securities or assets, contracts or any other means to get on the other one or more of all or part of the direct or indirect control over the behavior. '
In Taiwan, 'fair trade', Section 3 states: 'this law combined enterprise that one of the purposes of the following circumstances: (1) those who combined with his career; (2) holds or acquires cause of the shares or capital contributions, to achieve his career voting shares or more than one-third of the total capital; (3) the transferee or lessee of his career in whole or in substantial part of the business or property; (4) with his career regular joint operation or by those entrusted with the operation of his career; (5) directly or indirectly controls the business or his career appointments and dismissals are. '
China's 'anti-monopoly law,' the implementation of clearly defined focus on the relevant operators defined. 'Antitrust Law' Article 20 provides that: concentration of business operators refers to the following situations: (a) merger of business operators; (2) the operator through the acquisition of the equity or assets obtains control over the other operators; (3) Operating such as those obtained by contract to other operators or control over other operators able to exert a decisive influence. It should be said, from the national focus on the definition of the operator point of view, can be derived concentration of business operators, no matter what way the presence and performance are the respective strength of a centralized economy, fair competition in the market is completely under the premise Such economic strength gathered at the time beyond the legitimate scope, it is bound by the national antitrust regulation is important object.
Third, the concentration of business operators specific forms
According to China's 'anti-monopoly law,' the provisions of the specific circumstances of business concentration expressed as follows:
(A) merger of undertakings' merger of undertakings 'means two or more enterprises by entering into the merger agreement, the combined company as a legal act. Operators merge in two ways, one merger, namely the existence of merger, it refers to two or more of the business combination, one or more of the companies incorporated in another enterprise legal acts; Second new merger refers to two or more enterprises combined into a new corporate legal act, the original two companies exist.
(Two) the operator through the acquisition of the equity or assets to other operators to obtain control over this form of business concentration and two cases, one is a business through the purchase, replacement and other methods to take stake in another enterprise, another enterprise or the enterprise to become the controlling shareholder of several companies and obtains control over the other operators; Another scenario is an enterprise through the purchase, exchange, mortgage and other ways to obtain one or several other corporate assets, the firm had become one or more other companies or controlling shareholder and controlling person.
(Three) operators through contracts obtained for control over other business operators or other operators to be able to exert a decisive influence on this point the operator's control and exert a decisive influence, should clarify the controlling shareholder and actual controller of this two concepts. Controlling shareholder refers to a limited liability company's capital investment accounted for over 50% of the total shares held by or representing more than 50% of the total share capital Corporation shareholders. The actual control refers to, though not the company's shareholders, but through certain investment relations, agreements and other reasons, can actually control the acts of the company. For the control of the anti-monopoly law and decisive influence on the operators is given to the provisions of the controlling shareholder and actual controller conceptual differences, thus to regulate the formation of by contract operators concentrated.
Fourth, the 'anti-monopoly law,' the lack of regulation and improvement
China's 'anti-monopoly law,' The introduction of the operator focus on the situation in law made a clear provision, in determining the concentration of business operators in three forms, the report focused on the operators to review the relevant provisions are made . According to 'anti-monopoly law,' Article 21 stipulates: 'The State Council required the operator to achieve centralized reporting standards, operators should advance to the antimonopoly law enforcement agencies reporting, undeclared shall implement centralized.' Article 23 states: 'Operating those with the antimonopoly law enforcement agencies to notify a concentration shall submit the following documents and materials: declarations; focused on the effects of competition in the relevant market description; centralized agreements; participating undertakings are audited by accounting firms on a fiscal year financial reports; antimonopoly law enforcement agencies of the other documents and materials declaration shall contain the operators involved in the concentration of the name, residence, business scope, the implementation of centralized scheduled date and antitrust enforcement authority under the State Council and other matters. 'Section 27 also provides for a review of the substantive standard concentration of business operators, mainly involving the participating undertakings in the relevant market, the market share of its control over the market; relevant market concentration; operators focused on market access, technology progressive impact; operators focused on consumers and other operators concerned the impact; operators focused on the impact of national economic development; antimonopoly law enforcement agencies that should be taken into account other factors that affect competition in the market. In addition, on the review of 'anti-monopoly law,' Article 25 stipulates: 'The State Council anti-monopoly law enforcement agencies shall receive the operators submitted conform to the provisions of Article 23 of the documents and information within thirty days from the date of declared concentration of business operators conduct a preliminary review and make a decision whether to implement further review, and notify operators of the antimonopoly law enforcement agencies before making a decision, the operator shall implement a centralized the antimonopoly law enforcement agencies made the decision not to implement further review or fails to make a decision, the operator can implement centralized. 'Article 26 stipulates:' The State Council decided to implement the anti-monopoly law enforcement agencies to further review, it shall decide within ninety days from the date of completion of the review to decide whether to prohibit the concentration of decision and notify operators. making the decision to prohibit the concentration, it shall explain the reasons. the review period, the operator shall implement a centralized. 'For this one also provides the necessary circumstances AMEA second phase of the review period may be extended, but the extension of the maximum period of 60 days.Links to free download http://eng.hi138.com
From our antitrust laws focus on the operators reporting and approval of view, to a certain extent required to achieve a certain degree of corporate mergers and acquisitions reporting, the review also has the flexibility and other advantages, but in the specific implementation is still inadequate , and in particular:
(A) the provisions of inadequate reporting standards 'anti-monopoly law,' only 21 stipulates that the concentration of undertakings reporting standards achieved by the State Council, it shall advance to the antimonopoly law enforcement agencies reported, but no specific reporting standards. Although the 'State Council on the concentration of business operators reporting requirements' clearly the reporting standards, but the specific practice and international experience, the reporting enterprise in the world and the previous year's turnover in China requirement is too low. Therefore, from the competition on the market prohibited by antitrust serious damage together, declared concentration of business operators should be adjusted to the minimum.
(Two) on the review of the perfect 'anti-monopoly law' For the review of business concentration reporting requirements 6 standard of review, but some of the standard uncertainty, paragraph 4 and 5 of the 'concentration of undertakings for consumers and other relevant operators as well as operators focus on the impact of national economic development 'operational problems exist, it should be said that the purpose of antitrust law is to ensure fair market competition and safeguarding the interests of consumers protection. As for the other relevant operators and national economic development should not be classified in its review criteria and efficiency considerations, at this point should be to make the appropriate adjustment of legal regulation. In addition to the relevant market, market concentration, product market definition is not clear concepts, proposals should be associated in the law clearly defined. Of course, the 'anti-monopoly law,' the implementation, which is an important link in the 'State Council on the concentration of business operators reporting requirements' introduced at the same time, in operation, we still need to complete the development, improve the matching of specific rules for the operation to protect 'Antitrust Law' for the effective regulation of monopolistic behavior.
Fifth, business concentration review exemptions
Specified in an applicable exemption from antitrust law is, in some specific areas, despite restricting competition or in combination and other acts, but the law allows a certain degree of monopoly status, or the existence of a system of monopolistic behavior. This system is reflected in China's 'anti-monopoly law,' focused on the requirements of the operators is: 'operator can prove that the concentration on competition significantly greater than the favorable impact of adverse effects, or public interests, the State Council anti-monopoly law enforcement institutions can be made on business decision not to prohibit the concentration. 'Section 28 should be said about the concentration of business operators review the exemption is a progressive and practical significance. We draw on relevant experience abroad, while reviewing the exemption reflects the pursuit of the public interest, so that in the industrial policy and competition policy implementation can be found on a balance, so as to maintain the state of the orderly development of the market economic order.
Six, national security review and Liability
Of course, the 'anti-monopoly law' On the regulation of business concentration, there is also involved in foreign acquisitions and legal liability regulations. China's 'anti-monopoly law,' Article 31 provides that: 'foreign acquisition of domestic enterprises, or otherwise participate in the concentration of business operators, involving national security, except in accordance with this Law business concentration review, should also be in accordance with relevant state regulations national security review. 'Article 48 stipulates:' operator implementation of centralized violation of this law, the State Council anti-monopoly law enforcement agencies ordered to stop the implementation of centralized, the deadline to dispose of shares or assets, the deadline for transferring the business and to take other necessary measures to recover before the concentration state, shall be liable to a fine of 500,000 yuan. 'on foreign mergers and acquisitions involving national security review, because the relevant national economic security issues, and therefore should have the appropriate reviewing authority on the review body and the review process. Finally, for legal liability provisions deal with business concentration is an important legal remedies, but also makes for violations of antitrust regulation operability.
Concentration of business operators as a market economy under the conditions of competition between enterprises as a form of survival of the fittest, he for the expansion of business scale, optimize resource allocation have some positive effect. However, beyond the scope of fair competition, a dominant position in case of concentration of undertakings would cause a restriction of competition and exclusion, therefore, need to improve relevant laws, making the operator to focus on proper regulation, in order to protect fair competition in the market.Links to free download http://eng.hi138.com