Research On The Divestiture System Of Assets In The Concentration Of Business Operation Remedies

Undertakings concentration as a common operator activity,which may promote the monopolistic behavior while improving the competitiveness of the enterprise itself.The anti-monopoly law enforcement agencies have set up some countermeasures for the possible negative consequences,but the complete prohibition does not solve all the competition problems well.The merger remedies is particularly important.The asset divestiture system is representative.To put it simply,the divestiture of assets in the merger remedies(hereinafter referred to as “asset divestiture”)refers to the fact that in order to weaken the negative impact that the concentration of the operators may have on the competition,the two parties applying for concentration or the anti-monopoly law enforcement agencies propose to merge the business.Part of the related assets are stripped out to an independent third-party program and implemented,which is one of the structural remedies.The successful operation of the asset divestiture system mainly needs to be considered from three aspects,namely,the subject of the asset divestiture system,the object of the asset divestiture system,and the implementation procedures.The subject main include divestiture obligors,third-party buyers and trustees.When the asset divestment program is formulated,all the divestiture business is carried out around the divestiture obligor,and it is in a dominant position relative to the purchaser,so it must be bound and supervised.Specifically,it is required to perform its duties of selecting the purchaser in good faith and maintaining the independence of the divestiture business.In addition,choosing the right purchaser is also an important step in the implementation of asset divestiture,which needs to meet certain standards,such as independence and sufficient economic strength.For the trustee,it mainly plays a supervisory role and promotes the implementation of the divestiture smoothly.The object of divestiture needs to meet the criteria of competitiveness,independence and survivability,and its specific scope includes independently operated assets or business,and key intellectual property rights.In addition,in order to ensure the smooth progress of the asset divestiture process,an additional mechanism for the object is set up,that is,when the initial asset stripping fails,the higher quality assets are stripped out.The implementation procedures for asset divestiture mainly include the initiation,review and implementation of monitoring procedures.In the initiation phase,the parties usually initiate a procedure by proposing a relief plan.After the procedure is initiated,the law enforcement agency evaluates the program in terms of effectiveness,feasibility and timeliness.Subsequently,the divestiture obligor should find a suitable buyer for the transfer of assets within the prescribed time limit,and the supervisory trustee will supervise it.Anti-Monopoly Law has been implemented for 10 years in China,and it has also issued legal documents for centralized relief for operators.Although the relevant supporting legal documents and law enforcement practices are constantly improving,there are still many areas for improvement.At this stage,China's asset divestiture system mainly has too much principle on the criteria for the purchaser's identification;the selection criteria for the assets to be divested are not clear;the openness of the procedures to be stripped of assets is insufficient;the form of supervision is relatively simple.For the above problems,we can improve from the aspects of legislation and law enforcement: to refine the purchaser's qualifications in legislation,clarify the standards for the objects to be stripped,establish a follow-up disclosure system,and add a social supervision system.Law enforcement strictly selects assets and purchasers to be divested,practices information disclosure system,and guarantees the implementation of social supervision.