巴西经营者承诺制度的立法阐释及其对我国的启示

On the New Development of the System of Operators’ Cease and Desist Commitments in Brazilian Antitrust Law and Its Enlightenment to China

巴西经营者承诺制度的独特之处在于将核心卡特尔附条件地鼓励适用;在经营者承诺的程序制度上规定承诺的启动、谈判、裁决和履行及其监督等环节,同时,还规定为保护和救济第三方利益的扩散性权利保护基金的经营者支付规则、第三方介入程序的咨商机制和司法救济制度。我国应借鉴巴西的立法经验,将核心卡特尔附条件地适用于我国经营者承诺制度;完善经营者承诺的程序规则。

It is unique that the core cartel is conditionally encouraged to be applied in the system of cease and desist agreements in Brazilian Antitrust Law. In the procedure system of cease and desist agreements, it is stipulated that the cease and desist agreements are initiated, negotiated, approved and performed and its supervision etc.. At the same time, it also stipulates operators payment rules to the Fund for the Defense of Diffuse Rights, consultation mechanism for third-party intervention procedures and judicial relief system in order to protect and remedy the interests of third parties. China should learn from these legislative experience in Brazilian antitrust law, apply the core cartel conditionally to our country’s operators commitment system, and improve the procedural rules of operators commitment.