On The Anti - Monopoly Law On The Regulation Of Mergers -- Also Envisaged Anti - Monopoly Legislation In China

To standardize and restrict the merger is the core of modern anti-monopoly law. Since China has not issued an anti-monopoly law, in order to protect our national enterprises after China's entry into WTO, it is necessary for our country to draw up the anti-monopoly law to standardize the act of enterprise merger. Based on the research on relevant experiences of law making and law implementation in western developed countries, the author of the thesis makes an in-depth discussion in four parts, i.e. general survey of the merger concerning anti-monopoly law, thoughts of law and theory basis in standardizing and restricting the merger, standard substantive of the standardization and restriction of the merger, and its standard of procedure and legal sanction. Meanwhile, a few ideas of legislation of the anti-monopoly law on the basis of China's actual situation was brought forth as well.I. General survey of the merger concerning anti-monopoly law Through research and analysis of the legal features of merger and restriction of effect of competition caused by various types of mergers and legislations in western countries, The writer considers that merger in a broad sense must be applied to the anti-monopoly law of our country. Emphasis must be laid in restriction of horizontal merger in the legislation of our anti-monopoly law. As to vertical and mixed merger, legislative attitude of less and non-limitation could be taken respectively. To the system and development of the legislation, methods of other countries could be partially adopted and generalized to make the law separately with reference to anti-monopoly laws of other countries.II. Legal thoughts and theory basis in standardizing and restricting the mergerSchools of structure and behavior are the two theories basis in standardizing and restricting the merger. The school of structure takes pains in the standardization of macro-economic structure. They regard market share and market concentration as the decisive standards to judge whether a merger is against the law. This kind of way of judgment is nearly close to deduction of guilty. However, behaviorism completely discards the way of guilty deduction. When taking market share and market concentration as the important standard in judging whether an enterprise has restricted the competition, they also consider the factors of economic benefit, technological invention and improvement brought forth by the merger because of the change of market competition conditions. The world current development has shown a momentum of transformation from structuralism to behaviorism. Considering itspolicy of industry, actual economic situation and the international standing of competition, the writer believes that our country should set behaviorism as the theory basis in standardizing and restricting the enterprise merger.III. Substantives standard of the standardization and restriction of the mergerAccording to the theory of behaviorism, its standard substantives consist of four essential elements: related market, degree of centralization of the related product market, other factors and application exception. Related market is consisted of two crucial factors: related product market and regional market. The writer considers that the delimitation of the related product market is based on supply substitution too besides the consumers' reactions i.e. demand-and-supply. As to the demand elasticity index, our country could adopt methods to adjust it as per the common principles of price mechanism. And to the delimitation of the regional market, besides the two factors of the relations between the freight and value of the goods and its perishable feature, foreign trade becomes a factor indispensable. In measuring degree of related market centralization, three indexes are often used: ratio of centralization, DIHI index and market share. Through comparison and analysis, the writer regards that our country use DIHI index and market share to measure the market centralization degree in legislation and meanti...