The Study On Antitrust Law Enforcement In Respect Of Merger Of Enterprises In The New Economy

In recent years,the issue of AML enforcement in the new economy has attracted widespread attention in both the theoretical and practical fields.European and American countries have carried out theoretical study on the merger control of enterprises in the new economy since the beginning of this century.Since China starts late in this industry,and is mainly focusing on the study of industrial economy theory for the time being,with relatively less study on the estimate of anti-competitive effect of merger in the new economy,not to mention how competition and innovation are promoted by the additional remedial measures to the anti-competitive effect that is likely to occur in eliminating the mergers in the new economy.As the law enforcement authority for antitrust review of concentration of business operators,MOFCOM does not only face challenges of accurate discretion in reviewing such cases,but also has the task of law enforcement in parallel with other jurisdictions worldwide,which is brought about by the borderless new economy and internationalization of trading.This Article intends to analyze the practical issue and practice development of China's AML enforcement in the new economy in terms of merger of enterprises,examine and rethink the deficiency of the existing study,so as to promote the improvement and innovation of theories with regard thereto;meanwhile,we will give enforcement suggestions that is operational to expand ways of thinking in antitrust review of concentration of business operator by MOFCOM.There are seven chapters in the body text of this Article,excluding introductions and conclusions.Chapter ?,Concept of New Economy and Analysis of Common Features of the Industry.Currently,the academia,in particular the domestic scholars not only don't have a very vague concept in defining the new economy,but also use in their study"network economy","knowledge economy",and "innovation economy" which are similar to such concept in terms of both its connotation and extension.To study the new economy,a mutually recognized definition shall be made first in order to lay a solid foundation to the study.After the new economy is defined,analysis shall be made to the common industrial feature of the new economy,it is because such industrial feature that is different from that of the traditional industry,the new economy poses a challenge to the existing AML enforcement in respect of merger of enterprises,and an obvious limitation appears in terms of the analytical thought and analytical tools commonly adopted by the enforcement authorities in many jurisdictions.However,it should be noted that such limitation is based on the specific industrial feature of the new economy,it does not mean a thorough overthrow to the basic theory and analytical thoughts and approach of the AML enforcement in respect of merger of enterprises.Therefore,the best approach to tackle with this situation is to adjust each challenge on the technical level based on the flexibility of the existing rules,so as to minimize the unreasonableness and uncertainty in rule application brought about by the new economy.Chapter ?,Challenge of AML Enforcement in respect of Merger in the New Economy against Market Definition.In the history of implementation of AML,definition of relevant market has always been considered to be the starting point to analyze various competitions.With the tide of emerging of new economy,the leading position of market definition in the traditional AML theory has been shaking under the impact of industrial feature of the new economy,and it has become a hot topic in both theoretical and practical fields whether the existing method of market definition could be directly applicable to the new economy.In this Chapter,we first start from analysis of the concept of market definition and its role in AML enforcement in merger of enterprises,in order to explain the impact and challenges of new economy to the traditional method and analytical thoughts in definition of relevant market.Next,we discuss how to redefine the market definition under the AML enforcement in respect of merger in the new economy.We will then examine how to apply the traditional analytical tools and approaches of market definition to the new economy.Finally,we will analyze the application of potential competition theory in the new economy.Chapter ?,AML Enforcement in respect of Merger in the New Economy and Innovation of Estimate of Competitive Effect.Estimate of competitive effect is considered to be the hardcore of the merger analysis,but is a part of the AML enforcement in merger that is relatively less influenced by the new economy.The analysis framework,analytical thoughts and damage theory specific to the estimate of the competitive effect of merger in traditional industry basically can be applied to the new economy,provided that adjustment needs to be made based on the industrial features of the new economy.Such adjustment is mainly demonstrated by the extent of reliance on structuring of the principle for estimate of competitive effect,focus of estimate of competitive effect and factors to be considered in analysis of traditional unilateral effect.In this Chapter,we first start from establishing a rational principle for estimate of competitive effect of merger in the new economy,then we focus on the explanation of the analytical thought of unilateral effect in the estimate of competitive effect of merger in the new economy,especially on the important role of consideration factors including close competitive relation,innovation and elimination of competition constraints.Next,we will discuss how to adopt the efficiency defense in the estimate of competitive effect of merger in the new economy.Finally,we will analyze the thought for estimate of competitive effect involving joint innovation and standardized patent.Chapter ?,AML Enforcement in respect of Merger in the New Economy and Innovation of Relief Measures.Since the new economy attaches great importance to innovation,it grows rapidly.The competent competition authority shall,when formulating relief measures,find balance between solving the competition issue arising from merger and acquisition and safeguarding the innovative development of the industry and long-term effective competition.In the application of the relief measures for merger in traditional industry,based on the concerns in respect of the higher cost in enforcement of behavioral relief,greater difficulty in enforcement and supervision and the high risk in distorting market mechanism in certain aspects,the overseas antitrust enforcement authorities more favor structural relief.However,in the design of relief measures specific to merger in the new economy,both US and EU intend to apply more complicated behavioral relief,and will also add behavioral relief while taking structural relief.In this Chapter,we start from the basic theories in respect of the remedial measures,behavioral relief and structural relief,basic conditions on acceptable remedial measures,then analyze by comparison the advantages and disadvantages of applying structural relief and behavioral relief to the new economy and the potential problem existing therein,and finally conclude that it complies with the structural requirements of specific market to apply behavioral relief in the new economy,but its inherent defect in application shall be overcome.Chapter ?,AML Enforcement in respect of Merger in the New Economy and the Challenge of "Internationalization",In this Chapter,we start from introduction of international conflicts in the antitrust review of merger of enterprises to explain the conflicts arising from review conclusions and review procedures,and analyze the characteristics of the conflicts in the new economy on this basis.Next,we analyze the reasons causing such international conflicts,and discuss the rejection against the extraterritorial jurisdiction under the effect principle from the differences arising from legislation objectives and enforcement ideas and the extraterritorial jurisdiction arising from the effect principle.Finally,we make detailed analysis and discussion on ways of coordination in international conflicts,taking as examples the practice of experienced law enforcement authorities in US and Europe,and taking consideration of MOFCOM's practice in case review,and set forth the practical significance and feasible approach in realizing the coordination in international conflicts from such three aspects as improving the efficiency and transparency of case review,strengthening cooperation between enforcement authorities and promoting the coordination between the competition policy and other policies.Chapter ?,Overall Thought and Specific Suggestions on Improving the AML Enforcement in respect of Mergers in the New Economy of China.When discussing the AML enforcement in respect of mergers in the new economy,what should not be ignored is the spark outburst from the collision of the three systems including modern technology,market mechanism and legal system.It is the starting point of all logics as to how to build a monopoly evaluation and enforcement mechanism that complies with the feature of the new economy.In this Chapter,we start from establishing the value orientation of the AML enforcement in respect of mergers in the new economy complying with the current situation of China,and base our discussion on the characteristic of the market economy of China during the transition period,and discuss the overall thought of the AML enforcement in respect of mergers in the new economy of China in terms of improving competition law system,establishing a market competition structure complying with the interests of China,carry forwarding and promoting the culture and concept of market competition,and strengthening law enforcement ability.Then,we will propose specific measures and suggestions to tackle with the impact of new economy on the M&A review in such three perspectives as market definition,estimate of competitive effect and application of relief measures.Finally,we will put our discussion on the applicable principles of evidence in establishing antitrust enforcement system for mergers and establishing a mechanism for tracing and assessment of cases already decided.