Research On Anti-monopoly Regulation Of Concentration Of Undertakings Under VIE Framework

In the past two years,our country has further strengthened anti-monopoly law enforcement,and the number of cases punished in key fields such as platform economy,scientific and technological innovation,information security and people’s livelihood security has shown a trend of increasing year by year.On February 7,2021,the Anti-monopoly Commission under the State Council formulated and issued the Anti-monopoly Guidelines of the Anti-monopoly Commission under the State Council for the Platform Economy Sector(the "Guidelines"),which is the climax of anti-monopoly regulations in the Internet sector.In this legal document,a name has been hotly debated in academia:"protocol control," also known as the Variable Interest Entities architecture.The birth of VIE framework is based on the overseas listing demand of the Internet enterprises of our country.It realizes the control right of overseas listed companies over domestic interest entities by means of agreement.Because it is different from the equity control,it is not restricted by the foreign capital access to equity.Because of the particularity of VIE architecture,the cases of Internet enterprise acquisition involving VIE architecture have been divorced from anti-monopoly regulation since its birth.Based on the theory of VIE framework,this paper analyzes the current situation of anti-monopoly regulation of concentration of undertakings under VIE framework,and points out the deficiencies.By learning from the relevant systems of the USA and EU,this paper puts forward some suggestions on the anti-monopoly regulation of concentration of undertakings under the VIE framework in order to better maintain the fair competition order and promote the orderly development of the market.This article mainly includes the following six parts:The first part is the introduction,divides into three aspects.Secondly,it introduces the research status of domestic and foreign scholars on the validity of VIE framework,whether the concentration of undertakings involving VIE framework should be subject to anti-monopoly regulation,and how to improve the anti-monopoly regulation of concentration of undertakings in Internet enterprises.The second part introduces the relevant theories of VIE architecture,which lays the theoretical foundation for the following research.Based on the concept and background of VIE architecture,this part analyzes the steps needed to build VIE architecture,and introduces the content of VIE architecture.On this basis,it focuses on the legitimacy and validity of VIE architecture.Through the introduction of academic views on the effectiveness of VIE architecture,the author analyzes the issues of both sides.The third part includes the current situation and deficiency of anti-monopoly regulation of concentration of undertakings under VIE framework.This part introduces the provisions of the Anti-monopoly Law,the Provisions of the State Council on the Threshold for the Declaration of Concentrations between Undertakings(hereinafter referred to as the "Provisions"),the Guiding Opinions on the Declaration of Concentrations between Undertakings(hereinafter referred to as the "Opinions"),the Interim Provisions on the Examination of Concentrations between Undertakings(hereinafter referred to as the "Interim Provisions on the Examination")and the Guidelines on the methods for the declaration of concentrations between Undertakings,the system for the declaration of concentrations,the threshold for the declaration of turnover,the assessment of the impact of competition,the measures for punishing violations,etc.Through the analysis of the current situation,the paper puts forward the current deficiencies in the field of anti-monopoly regulation of concentration of undertakings in VIE framework,specifically including the absence of specific provisions on the VIE framework in the legislation,which leads to the unclear effectiveness of the VIE framework;the declaration standards for turnover are too single,which cannot meet the needs of anti-monopoly regulation of concentration of undertakings in the Internet field;there is no provision on punishment measures for violation of additional conditions and supporting measures for restoration of the status quo ante,which leads to the incompliance;the traditional structuralist review model does not match the emerging Internet industry,and the competition effect evaluation method is obsolete;and the review information is not fully disclosed,which is not conducive to public supervision.Based on the comparison and analysis,the fourth part sums up the direction of making double declaration standards,transforming to behaviorism,adding types of illegal acts and punishment measures,and fully disclosing law enforcement information.The fifth part of the VIE structure of the concentration of undertakings under the anti-monopoly regulations to improve recommendations.In terms of the declaration system,firstly,the concept of the VIE structure shall be clarified and its legitimacy and validity shall be determined;secondly,the transaction turnover declaration standard shall be added as a supplement to the turnover standard so as to expand the scope of regulation on concentration of undertakings.In the aspect of review,anti-monopoly law enforcement authorities should shift the focus of review from structuralism to behaviorism by gradually shifting the focus of review to competition effect assessment and defense.Meanwhile,in order to facilitate the work of the public supervision and law enforcement authorities,anti-monopoly law enforcement authorities shall expand the scope of review information disclosure and improve the transparency of review information.In the aspect of illegal punishment,legislation should further refine punishment provisions,formulate follow-up supporting measures of behavior punishment,set up punishment provisions for violation of conditions,and clarify aggravating circumstances and the amount of fines.