| Starting with the connotation of enterprise consolidation in the sense of Anti-Monopoly Law, the paper evaluates and analyzes various principles on which foreign countries firmly believe that enterprise combination leads to monopoly. And based on the analysis of the rule on such a recognition, the paper conceptualizes the theoretical frame of how to affirm monopoly is made up of enterprise combination in china's present economic background.The paper is divided into three parts.In the first part, the writer first thoroughly analyzes the subjects and its actions contained in several concepts, such as "enterprise merger"and"enterprise combination" which are frequently used in the sense of Enterprise law and "company combination" used in the sense of Company law. On the basis of the connotation of enterprise combination set in German's Law of Opposing restrictions on competition, the paper suggests that a special term should be created when our country issue Anti-Monopoly Law in the future in order to regulate the combination-"the enterprise combination".What's more, its scope is not confined to the fact that one enterprise gains the property or shares of another, but enlarged to a way of ownership that one enterprise could have dominant influence on another. The reason is that enterprise combination in the sense of Anti-Monopoly Law fundamentally refer to the unity , harmonization and strengthening of the market competition between those combined enterprises. As long as one enterprise could control another, they form one unity in the competion and could struggle for a larger market with the third one. Therefore, they should be restrained by Anti-Monopoly Law. In order to further definite the connotation and essence of enterprise combination in the sense of Anti-Monopoly Law, the writer takes many examples to analyze itsvarious models.In the second part, at first, the writer gives a full analysis on those accepted principles, which are concerned with the idea that enterprise combination makes for monopoly. Although in the theory the rationalization principle fully reflects the essence of Anti-Monopoly Law, due to its inborn disadvantages, such as its uncertainty, high cost and complicated judgement, when it is applied in practice, it should absorb the reasonable aspects of the itself illegality principle and make them integrate with each other to realize the law's value of the justice and efficiency. Simultaneously, the essence of Anti-Monopoly law is to regulate economic order of the society by "country's hand" to protect public interests. So only those enterprises who violate public interests can become the objects restrained by AntiMonopoly Law. At last, because the appliance of bankrupted enterprise principle can give free rein to the use of social wealth, so in foreign countries, it may become the excuse to demonstrate enterprise combination doesn't form monopoly.Secondly, the writer mainly makes a full-scale study and comparison on the essencial criterion established by America and German on how enterprise combination makes for monopoly and its exceptions. And the paper also analyzes its legislative orbit, which includes two aspects: one is the weakening of domestic control, the other is the strengthening of international control.In the third part, the writer visualizes how enterprise combination leads to monopoly in our country. After analyzing china's actual condition and theoretical foundation, and linking with the foreign experience and the trend of legislation abroad, the writer probes into the criterion of the monopoly. Based on the effective competition theory, the writer agrees in denying the scale standard and tolerating the mixed combnition, through defining the relevant market, examining the market share and the market concentration degree and on the basis of considering market's entering factors,such as the obstacle the bankrupt, the economic benefits and the international competitiveness, etc, then absorbing the rational factors in the rational principle, the social publ... |
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