论企业联营的反垄断法规制

On the Regulation of Anti-monopoly Law of Joint Operation of Enterprise

作为企业联合的组织形态,企业联营是指两个或两个以上的经营者之间达成的,包括但不限于短期合作、共同研发、协调生产、共同经营、联合投标、开拓销售渠道等多种经济内容的商业安排。企业联营在促进竞争的同时,也可能产生抑制竞争的后果。在发挥企业联营竞争促进作用的同时尽可能克服企业联营对自由竞争的损害,是规制企业联营的现实动因。企业联营的反竞争效应可分为单边效应与协同效应,对前述效应的分析应当在适用合理原则的基础上进行。执法机构对认定为违法的企业联营应当采取妥当的救济措施进行具体规制,以实现扬长避短的规制目标。

As the organizational form of enterprise alliance,joint operation of enterprise refers to the commercial arrangement reached between two or more operators,including but not limited to short-term cooperation,joint research and development,coordinated production,joint operation,joint bidding,opening up sales channels and other economic contents.While promoting competition,it may also have the effect of restraining competition.It is the realistic reason to regulate the joint venture to exert the promoting effect of the joint venture competition and at the same time to overcome the damage of the joint venture to the free competition as far as possible.The anti-competitive effect of joint venture can be divided into unilateral effect and synergistic effect.The analysis of the above effect should be based on the application of reasonable principle.The law enforcement agencies should take appropriate relief measures to regulate the illegal joint ventures,so as to achieve the regulatory goal of developing strengths and avoiding weaknesses.