Study On The Substantial Review Issues Of The Chinese Undertakings Concentration

With the growth of China's market economy and the speeded-up of the process of economic globalization,the concentration of undertakings is becoming more and more common.The influence of undertakings concentration has two sides.It not only helps undertakings to expand scale,improve economic efficiency and enhance competitiveness,but also may cause undertakings to generate or strengthen market control strength or cause blockade effect,thus damaging competition.What standard the undertakings concentration meets should be prohibited? When a concentration should be prohibited,what conditions should be met for exemption? What factors do review agency usually consider when conducting a review? According to Chinese regulations,the standard that concentration should be prohibited is “having or may have the effect that excluding or limitting competition”.The reason for exemption from prohibition of concentration is that the “beneficial effect on competition is obviously greater than the negative effect” or “it is in the social public interest”(The social public interest here is the expression in the Anti-Monopoly Law,which actually refers to public interest,and these two expressions have the same meaning.These two expressions used by the author in the following text express the same meaning).The review of undertakings concentration shall take the following factors into comprehensive consideration according to the specific circumstances of the case: the market share and market control strength of undertakings participating in concentration,the concentration degree of relevant markets,the impact of concentration on technological progress,market entry,other relevant undertakings,consumers,national economic development,economic efficiency and public interest,whether the undertakings are on the verge of bankruptcy,and whether there is a countervailing buyer power,etc.There are some deficiencies in the legislation of substantial review of undertakings concentration in China,including that the standard for prohibiting concentration is too low,that there are no quantitative standards for the market share and market concentration degree,and that the specific connotation of “social public interest” as the exemption reason for prohibiting concentration is unclear.In view of these issues,the author puts forward some ideas for improvement and perfection by analyzing the announcement of concentration review of China,referring to other relevant laws and regulations of China,and referring to the legislative provisions of foreign countries.This article is divided into five parts,the main contents are as follows.Chapter one,taking a law enforcement case as the breakthrough point,introduces the legislative status of substantial review of undertakings concentration in China,and puts forward three issues.Chapter two makes an in-depth analysis of the issue that the standard for prohibiting concentration is too low,analyzes differences of horizontal concentration,vertical concentration and mixed concentration in the application of standard for prohibiting concentration,analyzes the necessity of raising the standard,introduces the law enforcement practice in China and talks about the enlightenment of the extraterritorial prohibition concentration standard on China.Chapter three,in view of the lack of quantitative standards for market share and market concentration degree,analyzes the role of market share and market concentration degree in the review of undertakings concentration,the comparison and selection of measurement methods of market concentration degree and the function of stipulating quantitative standards.It also introduces the quantitative regulations of safe harbor of market share and threshold interval of market concentration degree in foreign countries,and draws enlightenment for determining quantitative standards in China.Chapter four analyzes the connotation of public interest in the context of anti-monopoly law and as a reason for exemption,the relationship between public interest and industrial policy,and the necessity of clarifying the specific content of public interest.It also introduces the legislative provisions about the specific content of public interest in foreign countries,and draws enlightenment for listing specific items of public interest in China.Chapter five,aiming at the above three issues,puts forward specific suggestions for improvement and perfection.