先行修正和买家前置规则比较研究

A Comparative Study of Rules on Fix-it-First and Upfront Buyer in Merger Control Lessons for China

先行修正和买家前置是欧美经营者集中反垄断控制执法的常用规则,我国执法实践中也有类似需求,但尚无明文规定。美国司法部青睐先行修正,美国联邦贸易委员会则倾向买家前置,欧盟对两种做法都有规定,但由于执法机制的差异,与美国又有不同。在我国以行政裁决为中心的反垄断执法机制下,附条件批准经营者集中具有行政行为属性,以此执法机制为背景,我国类似制度建设可考虑如下建议:第一,允许当事人自行调整集中交易;第二,允许当事人先行修正集中交易;第三,参考欧美的做法和德国关于中止条件、解除条件的规定创设买家前置规则。

Rules on fix-it-first and upfront buyer, commonly used in merger control in the U.S. and the EU, are also needed in law enforcement in China, but so far there are no legal provisions as explicit basis for their application. This article reviews the origin and historical evolution of those rules, and ana- lyzes the differences and the reasons therefor when fix-it-first and upfront buyer rules are employed by different authorities and in different law enforcement models. Drawing on the comparative analysis, the author stresses that similar rules in China would be operating in an administrative-oriented model, in which a conditional clearance decision is an abstract administrative action. Proposals for formulating the rules in China＇ s context are as follows： parties should be allowed to adjust their transactions on their own; parties should be allowed to fix the problems of their transactionsfirst; and upfront buyer require- ment should be established by adopting rules similar to those on suspension and termination as used in the U.S., EU and Germany.