我国反垄断罚款制度的革新——基于整体主义理念的研究

The Reform of China’s Anti-monopoly Fine System:A Study Based on the Idea of Holism

我国已经启动反垄断法的修订工作,其中罚款制度的修订广受关注。在反垄断罚款制度的应用中虽然整体主义理念初露端倪,但是仍具有相当大的局限性,甚至还发生了不少背离罚款整体主义理念的案例,导致罚款威慑力受到较大的冲击。纵观20世纪90年代以来欧美国家反垄断罚款制度的革新,基于单一经济实体理论和经济连续性理论而采取的罚款整体主义制度设计是一种较为常见的做法。罚款整体主义通常包括罚款基准的整体主义和罚款责任的整体主义。新时代我国反垄断罚款制度的革新应引入整体主义理念,在制度设计上以企业集团总销售额为基准计算反垄断最高罚款限额和确定反垄断罚款大企业威慑乘数,同时明确规定母公司对子公司的罚款承担连带责任以及在一定情形下要求企业承继者承担罚款责任。

China has already started the revision of the Anti-monopoly Law, among which the amendment of the fine system is widely concerned. In the application of anti-monopoly fine system in China, although the idea of holism appears, it still has considerable limitations. There are even many cases that deviated from the holism of fine, which leads to a great impact on the deterrent power of fines. Throughout the development and change of the anti-monopoly fine system in various countries since the 1990s, it is a common practice to design the fine holism system based on the single economic entity theory and economic continuity theory. The holism of fine usually includes the holism of fine benchmark and the holism of fine liability. In the new era, the innovation of China’s anti-monopoly fine system should introduce the concept of holism. In the system design, the maximum anti-monopoly fine limit should be calculated based on the total sales of enterprise groups and the deterrence multiplier of anti-monopoly fine of large enterprises should be determined. At the same time, it is clearly stipulated that the parent company should bear joint and several liability for the fines of its subsidiaries and require the enterprise successor to bear the liability for fines under certain circumstances.