An Empirical Study On The Public Interest Defense System In Scrutiny Of Undertakings’ Concentration

The public interest defense in the scrutiny of undertakings’ concentration refers to applications for undertakings’ concentration that have actual or potential harm to competition,they are allowed to merge exceptionally as they are in the public interest.Throughout the provisions of national anti-monopoly laws,most countries regard the public interest as a defense against competition,but because of the uncertainty of the concept of public interest,countries do not have a clear definition of it.China’s antimonopoly legislation also only mentions the concept of public interest,but there is no specific provision,so that the public interest defense system in scrutiny of undertakings’ concentration is not practical.Not only is it not conducive for our country’s enterprises to use the concentration of undertakings for the purpose of scale economic development actively,but also left a larger room for discretion the antimonopoly execution authorities in law enforcement,which may lead to the abuse of the defense system.Beginning with the case analysis,this paper explores the three aspects of defense in the scrutiny of undertakings’ concentration,the applicable rules of defense,the scrutiny and relief of defense.Clarifying the scope of public interest is the basis for the application of the system.However,because the concept of public interest is too flexible,the article does not give it a clear definition.Instead,it starts from the basic path and standard of public interest judgment and combines the provisions of extraterritorial public interest.The scope of public interest involved in the undertakings’ concentration was discussed.Regarding the problems in the understanding of public interest,this article specifically proposes that legislation should specify the content of public interest,set the boundary of public interest judgment,and introduce the principle of proportionality.The application of public interest defense is the key content of the system.On the basis of the theory of institutional application,this paper divides the public interest defense situation into two categories:based on competition policy and non-based policy from the operator’s point of view.After studying the situation of absorbing and adopting public interest defense cases in our country,we find the deficiency in the current evaluation mechanism.In order to regulate the use of public interest defense system in the future,the paper puts forward the conditions to limit the use of public interest defense and the suggestion of discrete competition scrutiny right and defense examination in our country.The scrutiny of public interest defense is the result of the application of the system.After the operator has filed a defense,the antimonopoly execution authorities shall make the final decision after a detailed scrutiny.By studying the content and procedures in the scrutiny,the paper recognizes that the low transparency of the current law enforcement makes the ruling unconvincing.Therefore,we puts forward suggestions to improve the current public hearings in order to ensure the disclosure of information and enhance public participation.After analyzing the current public interest defense cases scrutiny decision remedies,this article believes that it cannot effectively protect the legitimate rights and interests of undertakings,and proposes that a professional reconsideration agency should be established and the judicial scrutiny of public interest defense cases should be strengthened.