An Analysis Of The Applicable Concentrated Behavioral Relief Of Operators

The concentration of business operators and monopoly agreements, abuse ofdominant market position are the three pillars of anti-monopoly law in ourcountry. For the concentration of business operators which has important position, theanti-monopoly enforcement agencies tend to unconditionally approve or attach reliefconditions. The approval attached conditions is what we called the concentrationrelief system, it can not only protect the market competition from being affected bythe concentration, and can effectively maintain efficiency caused by concentration.The concentration relief can generally be divided into structural remedies, behavioralremedies and mixed remedies according to law. Structural relief is to revise therelevant market structure, behavioral relief is to restrict the behaviors of the operators,the mixed relief is to attach both structural remedies and behavioral remedies.Although the anti-monopoly agencies generally favored for structural remedies, theimportance of behavioral remedies has in recent years become increasingly prominent.China’s Ministry of Commerce usually use behavioral remedies to cope withconcentration that need relief, but China’s provisions about behavioral relief system istoo principle and simple, lack of maneuverability, and many problems appearedduring application. With the development of practice, it is necessary to research anddiscuss on issues concerning the behavioral relief. This article is intended to researchthe application of behavioral relief, make a summary of the application of behavioralrelief and put forward some suggestions to perfect the system of our country, throughsummarizing the domestic and foreign related provisions, analyzing the domestic andforeign related cases.The structure of this paper is mainly divided into the followingfour parts:The first part, give a brief introduction to the behavioral relief, including theconcept of behavioral remedies and some common manifestation， such as thecompulsory license, non-discrimination clause, the termination of the exclusiveagreement terms.The second part, analyze the necessity of using behavioral remedies and theiradvantages and disadvantages. First, by analyzing the block function of behavioralremedies to the anti-competitive effect, illustrate the necessity of behavioral remedies.Then, by comparing with the structural remedies, summed up the advantages ofbehavioral remedies, its advantages include flexibility, not excessive intervention toconcentration. Finally, point out some drawbacks of behavioral remedies, recognizing the shortcomings can help us use it better in the future law enforcement.The third part, summarize the application of behavioral remedies.The applicationenvironment of behavioral relief can be divided as follows: First, horizontalconcentration. In general, horizontal concentration usually use structural relief, bydivestment to remove anti-competitive concerns. In order to ensure the effectiveimplementation of structural remedies, it is appropriate to add some behavioralremedies. But in some cases, where structural relief is not feasible or inappropriate,behavioral remedies is preferred. Second, non-horizontal concentration. In thesecases, behavioral remedies tend to be given priority to use. Because thenon-horizontal concentration has no overlapped assets or business, structuralremedies are not suitable, whereas the behavioral relief can effectively solve the blockeffect produced by non-horizontal concentration. Third, the high-tech industry.Compared with the traditional industries, high-tech industry is innovative, competitiveand complex. In this case, the market structure is changing, the concerns aboutcompetition caused by concentration are often of short duration, then the behavioralrelief is more suitable.The fourth part, analyze the situation of China’s Ministry of Commerce in the useof behavioral remedies. Put forward some proposals to improve the relevantsystem, include the introduction of detailed rules for implementation and furtherguidance rules, the law enforcement officers should apply the principle ofeffectiveness, proportionality, enforceability, controllability in using remedies.