Study On The Anti-monopoly Regulation Of Integration Of Industry With Finance

Market is the best place for industrial capital and financial capital to seek capital gain and competition mechanism is the starter for industrial substances and financial institutions to bond effectively. With the control in the world’s leading economies loosened since 1980s, financial capital and industrial and commercial capital bond and form enterprise group of combination of industry with finance, in other words, the integration of industry with finance (IIF) grows up once again around the world and becomes the mainstream trend of the development of the world economy day by day. While the integration of industry with finance brings scale economy and synergistic effect and increases the economic efficiency, it brings the problems of the rise of financial risk and risk transference, which can shock the financial supervision system and hamper market competition as a result of the market power coming from the combination, and then destroy the market competition mechanism by abusing the market dominance. They are the two big practical problems which need to be solved urgently and we must make laws and regulations to regulate the integration of industry with finance so as that they can bond effectively.Confronted with the comprehensive management of finance and multi-industry joint operation of industry and finance, perfecting and strengthening financial supervision is undoubtedly the primary work. But it has institutional limits to rely on the finance supervision system merely when replying the integration of industry with finance, in other words, the effective regulation of the integration of industry with finance need to solve the problem of the system undersupply. Our newborn anti-monopoly regulation system nearly loses sight of the integration of industry with finance in our country. The multi-industry joint operation of industry and finance trends to build up financial risks and form risk transference between industry and finance and enlarge the financial risk with the expansion of the combination and the continual concentration of economic power. Besides, the integration of industry with finance and its collectivization cause easily over concentration of market economic power and forming market monopoly power, which may hamper the effective market competition or damage market competition by abusing market domination and collusion acts inside the group and finally injure the welfare of consumers. So, even though a complete financial supervision system is produced, it needs the positive teamwork of anti-monopoly law to regulate the integration of industry with finance.In order to keep away and reduce financial risks and maintain the competition order and mechanism, it is very necessary to regulate the integration of industry with finance from the aspect of anti-monopoly. For implementing an effective antitrust regulation on the integration of industry with finance, we should complete anti-monopoly legislation and enhance anti-monopoly execution as follows:firstly, changing the concept of anti-monopoly legislation and execution and the field of regulation in the field of the integration of industry with finance, and paying attention to the balance of developing economies of scale and preserving effective market competition. The subjects to be regulated should be determined case by case, which can draw lessons from European economic entity theory and American theory of business group internal management arrangement. Generally the business group of the integration of industry with finance should be regarded as a complete subject of market and be governed more strictly from the aspect of antitrust. Different kinds of concentration of business operators combining the industry and finance should be regulated on anti-monopoly aspect in different manners:strengthening the control of horizontal concentrations and weakening the control of vertical concentrations and conglomerate concentrations and strengthening the anti-monopoly review in the process of integration of industry with finance. And the laws and regulations about the "first concentration" of industry and finance should focus on the financial supervision and take the antitrust regulation, namely the control on concentration of business operators as an auxiliary part. On the contrary, for the "once more concentration" of the integration of industry with finance, namely the external expansion of enterprise group of combination of industry with finance, the antitrust regulation of concentration of business operators should be the primary with the financial supervision auxiliary. The most typical actions of enterprise group of combination of industry with finances abusing market dominant position include disparate treatment, refusal to deal, tying in disguised form, the antitrust regulation pattern of which should combine monopoly situation and monopoly action and perfect the counterargument system and the liability system. The monopoly agreement between enterprise group of combination of industry with finance and other operators can be regulated by the general rules in the "Anti-monopoly Law". In comparison, the regulation on the monopoly agreements inside the business group should be strengthened. Taking eliminating or restricting competition as the substantive standard, the value goal of regulating the integration of industry with finance should be located on achieving the unity of preserving the interests of consumers, increasing the efficiency of economic operation and ensure financial security. In the process of developing the integration of industry with finance and regulating it, when competition policies conflict with industrial policies and financial supervision, the first point is to insist that competition policies has priority over industrial policies, and the second point is to pay attention to the coordination between antitrust regulation and financial supervision. The regulation of the integration of industry with finance needs to work along both lines of perfecting financial supervision and strengthening antitrust regulation, and the complementation and coordination of the enforcement of them is of vital importance.This paper includes nine chapters. Chapter 1 is a general overview of integration of industry with finance, mainly explaining the economic intension and legal interpretation of the integration of industry with finance, making clear the legal pattern of it and the main route of their combination, summarizing the basic legal characteristic of the combination and its economic entity, dividing the main legal forms of the combination into financial group, universal banking, financial holding company (or group) in the pattern of the integration of industry with finance, mixed business group and consortium business group, and discussing the generation and development trends of the integration of industry with finance and its advantages and disadvantages.Chapter 2 is the part of the financial supervision in the filed of the integration of industry with finance and its limits. This part begins from the financial supervision pattern, analyses the legal problem of the financial separate supervision system doing with the integration of industry with finance, on that basis, puts forward the concrete strategies of perfecting the financial supervision on that combination in our country, then, demonstrates that even though a perfect consolidated financial supervision system, merely relying on financial supervision to reply the integration of industry with finance has institutional localization, and it is badly in need of solving the predicament of institution supply, draws forth the core issue that integration of industry with finance needs anti-monopoly regulation.Chapter 3 is the part of the concrete manifestations of the monopoly and anti-competitive practice in the field of integration of industry with finance and their advantages and disadvantages. Firstly, this part explains the motivation and reason of the monopoly and anti-competitive practice in the field of the combination. Then, it concludes the main manifestations of them. Lastly, it analyses the main harm of enterprise group of combination of industry with finance’s anti-competitive practice, including:restricting or eliminating the competition in financial market, damaging the stabilization of the financial market, harming the unity and openness of the financial market, going against the increase of the consumer welfare.Chapter 4 is the part of change of the concept of antitrust legislation and execution in the field of the integration of industry with finance. On the basis of demonstrating the inevitability and necessity of the antitrust regulation in the field of integration of industry with finance, the part discusses the due change of the concept of antitrust legislation and execution in the field of the integration of industry with finance:the development trends of the concept of antitrust legislation in this field from static view to dynamic, the change of antitrust legislation values in this field from competition to cooperation, the change of antitrust legislation principle from structuralism to behaviorism, the change of antitrust legislative purpose from promoting competition to maximizing consumers’ welfare, the change of the antitrust legislative vision in this field from domestic application to extraterritorial application, the change of antitrust legislative contents in this field from national legislation to international coordination and cooperation, the change of the principle of the antitrust law enforcement in this field from per se rule to rule of reason, the change of the antitrust legal responsibility in this field from single responsibility to comprehensive responsibility.Chapter 5 is the part of demarcation of the subject position of enterprise group of combination of industry with finance in the "Anti-monopoly Law". This part explains the particularity of enterprise group of combination of industry with finance in the regulation by anti-monopoly law, analyses the determination of enterprise group of industry with finance in our "Anti-monopoly Law" and its deficiency, puts forward the suggestion of identifying the subject position of enterprise group of combination of industry with finance in the anti-monopoly law case by case, drawing lessons from European economic entity theory and American theory of business group internal management arrangement.In the sixth, seventh and eighth chapters, the three kinds of anti-competition practice, which are over-concentration of enterprise group of combination of industry with finance, business group’s abuse of dominant position and monopoly agreements inside business group, are discussed respectively. Chapter 6 is the part of the anti-monopoly regulation of the over-concentration of business operator in the field of integration of industry with finance. On the basis of dividing the concentration of enterprise group of combination of industry with finance into horizontal merger and non-horizontal merger, first concentration and once more concentration, this part demonstrates that different concentrations should be regulated in different manners by the anti-monopoly law, and puts the emphasis on the value goal, substantial standard and procedure of the anti-monopoly regulation of the over-concentration of the enterprise group. Chapter 7 is the part of the anti-monopoly regulation of abuse of dominant position of enterprise group of combination of industry with finance. Firstly, it analyses the dominant position of enterprise group of combination of industry with finance and its identification. Then, the constitution, definition and expression of their abuse of dominant position are analyzed. Lastly, I expound that when regulating the enterprise group’s abuse of dominant position, we need to choose the regulation pattern combining monopoly situation and monopoly action, perfect the counterargument system to pursue justice for single case, and consummate the liability system to complete legal sanction. Chapter 8 is the part of the anti-monopoly regulation of monopoly agreements inside enterprise group of combination of industry with finance. Firstly, I divide this kind of actions into collusion between enterprise groups of combination of industry with finance to eliminate or restrict competition and collusion inside enterprise group of combination of industry with finance to eliminate or restrict competition. Only the later makes sense when we researching the integration of industry with finance. And when we regulate it, the per se rule should be the main principle to judge whether a monopoly agreement is illegal, and the vertical cartel exemptions should be strict. And the penalty should be increased properly to intensify sanctions.Chapter 9 is the part of the functional differences, coupling and complementation of the anti-monopoly regulation system in the field of integration of industry with finance and the financial supervision system. Firstly, I analyze the complexity of the laws and regulations about integration of industry with finance. Then, I explain the functional differences and complementation of financial supervision system and anti-monopoly regulation. Lastly, I mainly demonstrate that the key of coordinating the laws and regulations about financial supervision and anti-monopoly regulation of integration of industry with finance is to hold the following two point:one is to deal with the relationship between anti-monopoly law and financial supervision law properly; the other is deal with the relationship between anti-monopoly law enforcement agency and financial regulator properly. Only in this way can the integration of industry with finance be effective really.