A Study Of Object Of Divestiture System Under Business Operators’ Concentration Control

The Ministry of Commerce issued the41st order of Interim Provisions on theDivestiture of Assets or Business in the Concentration of Business Operators in July2010, which details the rights and obligations of all subjects in divestiture process andmarks the foundation of the framework of competition law. Divestiture relief is onekind of merger relief measures. Through divestiture and transfer to anothernon-related party of the of the competitive asset of concentrated business operators,the amount of competitors can be maintained in the market, the effective competitioncan be formed and the anticompetitive effect caused by concentration of businessoperators can be eliminated and reduced. On the other hand, industrial structure canbe upgraded and optimal allocation of enterprise resources and the efficiency ofeconomic operation can be promoted.In the first chapter of the thesis, from the perspective of Controlling System ofConcentration of Business Operators, the author mainly introduces the types ofControlling System of Concentration of Business Operators, the comparison ofStructural Relief and Behavioral Relief and the function of the Divestiture System andconcentration types adopted. In the second chapter, the author analyzes therequirements in selecting divested assets, the source of divested assets in differenttypes, and introduces other factors to affect the range of divested assets. In the thirdchapter, the author draws lessons from enforcement practice of antitrust law in the EU and the United States and analyzes the objects of the Divestiture System, whichmainly includes tangible assets, intangible assets, labor relating to divested operationand contract and other kinds of information relating to divested operation. In the forthchapter, the author introduces current situation of legislation and enforcement ofobject selection of the Divestiture System in China, puts forward the current problemsand improved suggestions.The Controlling System of Concentration of Business Operators can be dividedinto three types, concentration allowed, concentration prohibited, concentrationattached with restrictive conditions. Divestiture system is one of concentrationattached conditional and belongs to Structural Relief. As a result of functions oftransform of the market structure at once, introduction of a new competitor,weakening the potential anticompetitive effects, Divestiture system is popular toanti-monopoly departments, and it can be adopted in horizontal merger, verticalmerger. The selection of divested object is the core of Divestiture system. Divestedobject should be competitive, independent and survivable, and the divested businessshould be an ongoing, independent and whole business. In Horizontal merger thecommon business of the two parties should be divested and the assets of the acquiredparty should be divested preferentially in Vertical merger. Tangible asset is the key ofdivested objects, labor and contract and other kinds of information relating to divestedoperation should be divested attached to tangible asset, and intangible assets can onlybe separately divested in certain circumstances. The frame of Divestiture system inChina has been basically established under the publication of a series of supportinganti-monopoly laws and regulations, but the specific guideline relating to elements ofselecting divested object and the range of divested object has not been promulgated. Itshould be legislated in the form of guideline or commitment model.