| The development of the socialist market economy has become more active in the process of deepening economic globalization.Market competition environment also changes profoundly with the tide of economic globalization.China’s "Anti-Monopoly Law" has been implemented for more than ten years.With the continuous development and changes of the socialist market economy during the past ten years,the growth rate of the number of cases involving the concentration of business operators in China has also been accompanied by the increasingly active reality of M ＆ A in the Chinese market.In general,concentration of operators can enable enterprises to achieve economies of scale and promote their market competitiveness.Our country holds a supportive and encouraging attitude towards the concentrated behavior that can produce positive influence.It is mainly reflected in the content stipulated in Article 5 of the Anti-Monopoly Law,which clearly stipulates that operators can expand their business scale through fair competition and voluntary union,and implement concentration in accordance with the law to improve market competitiveness.But at the same time,concentration of business operators can generate market dominance,directly or indirectly exert a dominant influence on other business operators,and cause exclusion and limitation of competition,thus bringing adverse effects to the overall economy.According to the provisions of the Anti-Monopoly Law,the Anti-monopoly Law Enforcement Agency of the State Council shall make a decision to prohibit the concentration of operators that have or may have the effect of eliminating restrictions.In China,the anti-monopoly law enforcement agency can prohibit concentration as long as it can be inferred that concentration will result in the elimination and restriction of competition according to the relevant circumstances of concentration.However,China does not ban all concentration of business operators that have the effect of excluding and restricting competition.The content of the 28 th part of the Anti-Monopoly Law provides that the standard for exemption of concentration of operators in our country mainly includes two aspects,namely,the beneficial effects are significantly greater than the adverse effects and are in line with public interests.In the specific practice of centralized control of operators,the exemption standard has an important guiding role for the centralized exemption of operators.In China’s anti-monopoly legislation,the requirements for exemption standards are relatively general and lack operability.On the one hand,the rules for judging favorable impacts are significantly greater than the negative impacts,and there are certain logical errors in the criteria for favorable impacts that are significantly greater than adverse impacts.The standard stipulates that the two stages of competition review and exemption are not correctly distinguished,which confuses different factors that should be considered in the two stages of competition review and exemption.On the other hand,the specific scope of public interest in the social public interest exemption standards is unclear.Public interest itself is a vague concept.As the exemption standards directly cited in individual cases have no specific typed guidance,it is difficult to effectively serve practice.In addition,the application of exemption standards in the process of law enforcement is too lenient,and there is an imbalance between leniency and strictness in treating different market entities.In the exempted competition review process,the relevant objection rules and sufficient reasoning rules are also not sound.The essence of the concentration exemption for operators is a defense of public policies other than competition policy.In order to make better use of the substantial role of the operator’s concentration exemption standard,by analyzing and researching the problems existing in the operator’s concentration exemption standard,we will explore specific and perfect measures in terms of legislation and law enforcement,to provide a perfect path for legally valid application of exemption standards in case practice.At the legislative level,there must be "breaking" and "establishing".On the one hand,we will improve the social public interest exemption standards,clearly define the connotation of the public interest,and at the same time establish bankruptcy enterprise exemption standards,and provide specific anti-monopoly law enforcement agencies with a specific concentration of business operators exemption reference standard in practice.On the other hand,the removal of favorable impact is significantly greater than the adverse impact exemption standard,and it is clear that the concentration exemption and competition review of operators are two different stages of distinction and recognition.At the level of law enforcement,improve the rules of objection expression and sufficient reasoning involved in the competition review process of concentration of business operators in the law enforcement process.To ensure that relevant subjects fully express their objections in the competition review hearing process,the publicity of the results of the exemption ruling covers factual evidence and legal basis,and promote the legal and effective application of the concentration exemption standard for operators. |
