A Comparative Study Of Chinese And American Merger Remedies

Concentration of undertakings, or are mergers, are likely to restrict and promote competition. In many countries, anti-monopoly law enforcement organs take conditional approval of the concentration of undertakings. Which support for the undertakings expanding the operation scale and they can compete adequately. Meanwhile can prevent the destruction of the market competition and maintain market innovation. The concentration undertakings additional restrictive conditions known as "merger remedies" in the America, in essence, it is a form of merger remedies or concentration undertakings remedies. Approved with restrictive conditions is the best choice between the direct prohibition and unconditional approval for the concentration of both favorable and derogative. It must follow such six principles as the necessity, sufficiency, effectiveness, consumer welfare, industrial policy coordination, transparency and predictability. American Hart-Scot--Rodino Antitrust Improvements Act issued in1976, which established the legal system of the concentration undertakings additional restrictive conditions. It developed in all aspects later. Article29of Chinese Anti-monopoly Law established the system in2007.American anti-monopoly law enforcement agencies are America Federal Trade Commission and the Justice Department’s antitrust division. Chinese anti-monopoly law enforcement agencies are three, the commerce ministry’s antitrust bureau is responsible for anti-monopoly review of concentration undertakings. American private plaintiffs have the power of law execution. America has a well-developed private enforcement, while China lacks of it. Additional restrictive conditions are divided into structural conditions and conduct conditions. Structural conditions are widely regarded as the preferred conditions, and American officials have stressed it. But in recent years, they have certain of conduct conditions. In practice, China treats structural conditions with caution, but remains open-minded about conduct conditions. It needs assessment when applicable conditions. In the specific assessment, getting and assessing information are important task. In many assessment methods, market test is a commonly used one. In the overall procedure structure, America takes a judicial procedure, while China takes administrative procedure. In the specific procedures, it needs to site conditions before carrying them into execution. The determination of conditions began in the advice of conditions. The restrictive conditions proposed by the parties in general, and then by law enforcement agencies for assessment, review. The setting of supervision trustee is essential for implementing conditions. The supervision trustee needs to have the corresponding qualifications, and perform his statutory duties. America made clear that the supervision trustee may be designated by law enforcement departments, while China lack of it.The legislation about the concentration undertakings additional restrictions conditions has made great progress in China, but still in shortage, we can further improve it. In comparison with America, Chinese blemishes of the concentration undertakings additional restrictive conditions exist in:the private enforcement system has imperfections in the law enforcement entity, the lake of legislation about conduct conditions in substantive rules, the transparency of law enforcement is not high, administrative adjudication procedures may lead to deviations from the law enforcement objectives easily and the legislation of selecting supervision trustee is not perfect in procedural rules. Basing on the above analyst, it needs to improve the private enforcement in the law enforcement entity. It should promote the legislation about conduct conditions in substantive rules. It may increase the transparency of information, promote the reform of judicial procedures and improve the legislation about selecting the supervision trustee.