扼杀式并购的反垄断法规制:国际比较及其启示

International Comparison of Anti-Monopoly Law Regulation of Killer Acquisitions and Implications for China

在位企业对初创企业的扼杀式并购在很多行业中普遍存在。传统的经营者集中控制制度对这种并购无法进行有效的规制。德国、奥地利、美国等国家开始通过立法修法和调整执法政策的方式,加强对扼杀式并购的监管,主要举措包括改革并购交易申报制度,加强并购交易事后监管,完善竞争损害举证责任制度,扩大反垄断执法机构主动执法权限。鉴于我国现行反垄断法律制度亦不能有效规制扼杀式并购,我国应及时修改反垄断法律、规章和指南,加强对经营者集中的监管,防止扼杀式并购损害市场竞争。

Killer acquisitions of start-ups by incumbent firms are prevalent in many industries.The traditional operator concentration control system cannot effectively regulate such acquisitions.Germany,Austria,the United States and other countries have begun to strengthen the regulation of killer acquisitions by means of legislative amendments and adjustments to enforcement policies,with the main initiatives including reforming the notification system for merger and acquisition,strengthening the ex post regulation of merger and acquisition,perfecting the system of burden of proof for competition damages,and enlarging the proactive enforcement competence of the anti-monopoly enforcement agencies.In view of the fact that China’s current anti-monopoly legal system can not effectively regulate stifling acquisition,China should strengthen the supervision of operator concentration through the revision of anti-monopoly laws,regulations and guidelines,so as to prevent killer acquisitions from harming market competition.