core reading

  From the perspective of operators, compliance operation is the basic rule for participating in the market economy.

Relevant enterprises must operate in accordance with the law and have a reverence for the law, especially when the business model is profitable but suspected of breaking the law, they must be able to maintain the bottom line.

  □ Our reporter Zhang Wei

  □ Shen Zhongliang, a trainee reporter of this newspaper

  Recently, the State Administration for Market Regulation released 13 cases of illegal implementation of administrative penalties for concentration of operators, involving leading Internet companies such as Alibaba and Station B.

As soon as the news came out, it attracted widespread attention from the outside world.

  There are various interpretations of this.

Some people think that this is "the first anti-monopoly fire in 2022", some think that it is just "a manifestation of normalized law enforcement", and some think that this move once again shows that "Internet platform companies are the focus of anti-monopoly law enforcement agencies." ".

  Industry experts pointed out in an interview with a reporter from the "Rules of Law Daily" that this was mainly a centralized clearing of the "applied and unapplied" in the early stage, which released a positive signal: it can make market players clear their expectations and help strengthen the The confidence of market players, thereby promoting economic development in 2022.

  Where are the 13 fines pointing to?

  The "Rules of Law Daily" reporter found that many of the 13 administrative penalty cases released this time violated Article 21 of the Anti-monopoly Law, which constituted failure to declare and illegally implement the concentration of business operators in accordance with the law. Limit competition effects.

According to Articles 48 and 49 of the Anti-Monopoly Law, a fine of 500,000 yuan will be imposed on enterprises that fail to declare and illegally implement concentration of business operators.

  According to Article 21 of the Anti-Monopoly Law, if the concentration of business operators meets the reporting standards stipulated by the State Council, the business operators shall declare to the anti-monopoly law enforcement agency of the State Council in advance, and the concentration shall not be implemented if the declaration is not made.

  So, what is "concentration of operators"?

Article 20 of the Anti-Monopoly Law stipulates: "Concentration of business operators refers to the following situations: (1) business operators merge; (2) business operators obtain control over other business operators by acquiring equity or assets; (3) business operators The operator obtains control over other operators through contracts or other means or can exert decisive influence on other operators.”

  For example, two penalty decisions involving Alibaba show that Alibaba (China) Network Technology Co., Ltd. and Guiyang Xingli Department Store Group Co., Ltd. established a joint venture, Hangzhou Ali Venture Capital Co., Ltd., Zhengzhou Xunjie Trading Co., Ltd., Guiyang Xingli Department Store Group Co., Ltd. Radio and Television Media Group Co., Ltd. acquired the equity of Guizhou Pan-Asia Information Communication Network Technology Co., Ltd., and was fined for failing to declare and illegally implement the concentration of operators.

  Lv Benfu, a professor at the University of Chinese Academy of Sciences and a member of the Expert Advisory Group of the Anti-Monopoly Committee of the State Council, analyzed that this is the fifth time that the State Administration for Market Regulation has announced the illegal implementation of concentration of operators in the platform field after the central government required to strengthen the supervision of the platform economy in 2021. The most ever.

As for why there are so many, in Lv Benfu's view, it is mainly to clear the "applied and unapplied" in the early stage.

"In the past, the shareholder structure of many platform companies was the VIE structure (VIE stands for Variable Interest Entity, which is a variable interest entity. The VIE structure is also called "agreement control", and its essence is a method adopted by domestic entities to achieve overseas listing) , there was a certain ambiguity in the identification of its attributes in the past. Now, the anti-monopoly law has clear guidelines for dealing with these mergers and acquisitions, but the connection between the old and new laws is worthy of attention. In addition, clearing the zero as soon as possible has many advantages, so that market players can clearly It is expected that it will help enhance the confidence of market players, thereby promoting economic development in 2022."

  Anti-monopoly enforcement is normalized

  In the past 2021, there have been many anti-monopoly actions, which is why it is called China's "anti-monopoly year" and "the first year of platform economy anti-monopoly".

  On February 7, 2021, the Anti-Monopoly Commission of the State Council issued the "Anti-Monopoly Guidelines on the Platform Economy", emphasizing that the Anti-Monopoly Law and supporting regulations apply to all industries, and treat all market players equally and fairly. And stop monopolistic behavior in the platform economy, and promote the standardized, orderly, innovative and healthy development of the platform economy.

  On October 19, 2021, the Anti-Monopoly Law (Draft Amendment) was first submitted to the Thirty-first Session of the Standing Committee of the Thirteenth National People's Congress for initial deliberation.

This revision of the Anti-Monopoly Law adheres to both regulation and development. In view of the outstanding problems existing in the implementation of the Anti-Monopoly Law, the relevant anti-monopoly system will be further improved, and the penalties for monopolistic behaviors will be increased, so as to strengthen anti-monopoly and prevent the disorderly expansion of capital. Clearer legal basis and stronger institutional guarantee.

  On November 8, 2021, the State Anti-Monopoly Bureau was officially established.

The State Administration for Market Regulation added the "State Anti-Monopoly Bureau" brand, and established the Competition Policy Coordination Department, the Anti-monopoly Law Enforcement Department, and the Anti-Monopoly Law Enforcement Department.

  Wang Jian, Dean of the School of Law and Politics of Zhejiang Sci-Tech University and a member of the Expert Advisory Group of the Anti-Monopoly Committee of the State Council, believes that the listing of the State Anti-Monopoly Bureau is an inevitable requirement for a major strategic decision to strengthen anti-monopoly and prevent the disorderly expansion of capital, and it also improves my country's anti-monopoly enforcement. The status and authority of the agency will be further enriched, the supervision force will be further enriched, the anti-monopoly law enforcement will be normalized, and the supervision efficiency will be greatly improved.

  It is understood that in 2021, the market supervision department will strictly review the concentration of operators of platform enterprises in accordance with the law, improve the efficiency of anti-monopoly review of concentration of operators, and reduce the institutional transaction costs of enterprises.

From January to October 2021 alone, the number of cases filed and concluded has increased by 48.7% and 50.4% compared with the same period last year, and the average case filing and concluded time has been shortened by more than 1/3 compared with that before the institutional reform.

  It is recommended that enterprises conduct self-inspection and self-correction

  The video conference on the national market supervision work held recently put forward 8 key requirements for the market supervision work in 2022.

Among them, it is specially proposed to "deeply implement the fair competition policy, improve the regulatory rules for supervision in accordance with the law, improve the pre-event, in-process and post-event regulatory chain, promote the improvement of departmental coordination and regulation, coordinate and grasp the key points of monopoly regulation, and improve the ability to regulate fair competition. level to promote high-quality development”.

  Faced with the new situation and new requirements of anti-monopoly, how should relevant enterprises do self-examination, self-correction and compliance work?

  Zhang Chenying, director of the Competition Law Research Center of Tsinghua University Law School and member of the Expert Advisory Group of the Anti-Monopoly Committee of the State Council, believes that from the perspective of operators, compliant operation is the basic rule for participating in the market economy.

Relevant enterprises must operate in accordance with the law and have a reverence for the law, especially when the business model is profitable but suspected of breaking the law, so as to maintain the bottom line.

"These companies also need to follow up on anti-monopoly enforcement, judicial rules and cases in a timely manner, and make compliance self-inspection a regular task. Check themselves against negative evaluation behaviors that are punished by benchmarks or made in effective judgments, and when their own behavior is the same as this. , we should take the initiative to correct and operate in compliance with laws and regulations.”

  Meng Yanbei, deputy dean of the Asia-Pacific Law Research Institute of Renmin University of China and a member of the Expert Advisory Group of the Anti-Monopoly Committee of the State Council, reminded that platforms with a dominant market position should be vigilant and pay attention to whether they may use their massive data to form new business opportunities. Advantages; whether it is possible to vertically exclude the upstream and downstream markets through the control of traffic entry, which will adversely affect the entry of new entrepreneurs; whether it is possible to use its basic market advantage to expand its market position in other fields through "self-preferential treatment" ; whether it is possible to eliminate future competitive threats by acquiring start-ups and avoid engaging in market practices that may pose competitive risks.

  "Considering that the large Internet platform companies are in a two-sided market, the market is characterized by network effects, economies of scale and big data. As a result, the market concentration is getting higher and higher, and the competition space for latecomers is getting smaller and smaller. These companies will instinctively rule out restricting competition, and strengthening anti-monopoly in the digital field will become a priority for anti-monopoly law enforcement in various countries." said Wang Xiaoye, a researcher at the Institute of Law of the Chinese Academy of Social Sciences and a well-known expert in my country's anti-monopoly law. , because the Internet big platform companies obviously have a dominant market position, they should be particularly vigilant not to violate the anti-monopoly law, especially not to abuse the dominant market position to exclude and restrict competitors, nor to exclude, restrict and distort the Internet market through mergers and acquisitions, including mergers and acquisitions of start-ups. competition.

  Xiao Jiangping, director of the Competition Law Research Center of Peking University and secretary-general of the Economic Law Research Association of the China Law Society, believes that the Central Economic Work Conference will set the economic work in 2022 as "stable and stable", focusing on stabilizing the macroeconomic market. , emphasizing the need to continue to stimulate the vitality of market entities.

On the basis of strengthening competition enforcement in 2021, it is necessary to sum up experience and properly handle the relationship between regulation and development.

At the operator level, it is necessary to learn the lessons of the punished operators and do a solid job of compliance.

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