| The experience of more than 10 years of anti-monopoly law in China has proved that centralized operator control is necessary for improving national economic vitality,maintaining enterprise production efficiency and protecting consumer welfare.In the world,merger remedies is an indispensable system in the centralized control of operators in all the major economies.Structural remedies and behavioral remedies are two basic types of merger remedies,which are based on the logic of structure-behavior.Because of the traditional preference of structural remedies in most countries and the transplant defects of the antitrust law,the theoretical and practical circles often ignore the study of behavioral remedies.As a matter of fact,there is no sequence between behavioral remedies and structural remedies.They have their own advantages and disadvantages.Establishing the independent value of behavioral remedies,and improving the behavioral remedies helps enhance the effectiveness of competition enforcement authorities in dealing with competition damage and protect the legitimate rights and interests of centralized traders and market participants.The relevant provisions on behavioral remedies in China are mainly concentrated in the“Provision on Imposing Merger Remedies on Concentrations of Undertakings(for Trial Implementation)” and the “Supervision Trustee Entrustment Agreement(Model Text)”.However,due to the weakness of the two texts,this system lacks the ability to implement and is limited by the shallow legal declaration.The legislation generally presents the unbalanced pattern of “ emphasizing the structure and neglecting the behavior ”.This paper adopts methods of normative analysis and empirical analysis.Through the interpretation of norms,the integration of data and the analysis of cases,the defects of conditional approval system in China are analyzed from three dimensions of conditional design,implementation and relief.First of all,the design mechanism of behavioral remedies in China is immature.On the one hand,in order to maintain the flexibility of behavioral remedies,the legislators only offer a simple classification,but ignore its certainty.This not only furtherance of the expansion of the discretion of law enforcement,but also makes it difficult for the legislation to play the role of guiding and predicting the concentration of parties;On the other hand,due to the lack of consideration factors in the design of behavioral remedies,many non-competitive factors replace the competitive factors in law enforcement.Although they can meet the expectations of the law enforcement authorities for the display of results and the protection of domestic industries,theeffect of the implementation of the remedies is not satisfactory.Secondly,there are many loopholes in the implementation mechanism of behavioral remedies in China.The implementation risk and supervision cost make behavioral remedies have higher requirements to the implementation mechanism.However,the current legislation provides for reference only to structural remedies and lacks the consideration of the particularity of the behavioral remedies: One is that the vagueness of the professional and responsibility of the supervision trustee leads to the poor effect of behavioral remedies supervision;The second is the blank of the implementation period and the validity at the expiration leads to the confusion of the enforcement of the law;The third is the narrow range of the rule of crown jewels is difficult to provide sufficient guarantee for the implementation of behavioral remedies.Finally,the relief mechanism of behavioral remedies in China is unsound.One is law enforcers pay little attention to the application of conditional adjustment and there are many defects in the condition change mode and the third part participation procedure;The other is the existing dispute settlement way is difficult to meet the requirements of timeliness and convenience of behavioral remedies dispute resolution.The behavioral remedies is an import of the western anti-monopoly law.In this paper,the source and tributary of conditional approval system in Europe and America are selected for comparative analysis.On the basis of analyzing and summarizing the similarities and differences of the systems and concepts of the above-mentioned jurisdictions,this text criticizes and draws lessons from relevant legislation and practical experience.It also provides suggestions for improvement rooted in the antitrust legal environment of our country,so as to coordinate the flexibility and certainty of behavioral remedies system.First of all,we should pay attention to the classification of typical behavioral remedies in terms of design,and consider the effectiveness of behavioral remedies design mainly from the aspects of anti-competitive effect,innovations,control policies and global parallel review.Secondly,the implementation of remedies should be carried out from subject,time limit and safeguard measure.In fully understanding the flexibility of the operational mechanism and the risk of implementation by behavioral remedies,we should refine the qualifications and duties of the supervisory trustees,make clear the consideration factors for the implementation of deadline setting,and allow the behavior remedies to be included in the scope of crown jewels provisions alternative scheme;Finally,in terms of condition relief,it is necessary to improve the conditional adjustment mechanism.To harmonize purity of implementation and adaptability to complexmarket environment of behavioral remedies,law enforcement departments should attach importance to the application of conditional adjustment and legislators should enrich the way of changing remedies and explicitly endow the rights of participation and expression of the third part.Secondly,it is necessary to carefully draw lessons from the dispute arbitration mechanism of the United States and Europe and seek a balance between the publicity of competition policy and the autonomy of commercial arbitration by coordinating the relationship between antitrust law enforcement agencies and arbitration institutions and improving the traditional commercial arbitration system. |
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