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反垄断法迎来大修罚金最高拟涨百倍
2020-01-08 01:09  www.ebook-pub.com

  施行11年的《反垄断法》迎来首次“大修”。1月2日起,国家市场监管总局就《反垄断法》修订草案公开征求意见,2020年1月31日截止。

The Antimonopoly Law, which has been in force for 11 years, ushered in its first major overhaul. Since January 2, the State Administration of Market Supervision has publicly solicited views on the draft amendments to the Anti-monopoly Law, which ends on January 31,2020.

  现行《反垄断法》于2008年8月1日正式实施,这也是该法实施11年来首次修订。与“旧法”相比,《修订草案(公开征求意见稿)》首次拟将互联网新业态列入,并大幅提升处罚标准。

The current Anti-monopoly Law was officially implemented on August 1,2008, and it was revised for the first time in 11 years. Compared with the old law, the revised draft (draft for public comments) proposed for the first time to include new forms of Internet business and substantially increase the penalty standards.

  现行《反垄断法》明确规定,具有市场支配地位的经营者,不得滥用市场支配地位,排除、限制竞争。认定经营者具有市场支配地位,应依据其市场份额、相关市场竞争状况、经营者控制销售市场或原材料采购市场的能力等6项因素。

The current Anti-monopoly Law clearly stipulates that an operator with a dominant market position shall not abuse its dominant market position and exclude or restrict competition. To determine that the operator has a dominant market position, it should be based on its market share, the relevant market competition situation, the operator's ability to control the sales market or the raw material purchase market and other six factors.

  除前述普遍适用的依据外,此次征求意见稿新增:认定互联网领域经营者具有市场支配地位还应当考虑网络效应、规模经济、锁定效应、掌握和处理相关数据的能力等因素。

In addition to the foregoing general basis for application, the draft new request for comment: the determination that the Internet operators have a dominant market position should also take into account network effects, economies of scale, lock-in effects, the ability to grasp and process relevant data and other factors.

  中国人民大学商法研究所所长刘俊海接受新京报记者采访时表示,“旧法”出台时,很多互联网企业还没有成气候,更谈不上滥用市场支配地位的问题。十多年来,互联网在人们生活中的地位越来越重要。但长期以来,互联网企业滥用垄断优势地位,游离在《反垄断法》之外,“霸王条款”日渐升级,侵犯消费者知情权、选择权、公平交易权。

Liu liujunhai, director of the institute of commercial law research at the people's university of china, told xinjing newspaper that when the \"old law\" was introduced, many internet companies had not yet become a climate, let alone abuse of market dominance. For more than a decade, the Internet has become more and more important in people's lives. However, for a long time, internet companies have abused their monopoly advantage, and the \"overlord clause\" has been upgraded day by day, violating consumers'right to know, choose and trade fair.

  “过去我们仅仅按照《消费者权益保护法》有关条款来执行,但收效不佳,就是因为真正的‘病灶’没有找到。”刘俊海认为,此次征求意见稿瞄准了互联网的核心特征和盈利方式,例如网络效应、锁定效应、大数据采集应用等因素。

“In the past, we have only acted in accordance with the relevant provisions of the Consumer Protection Act, but the effect has been poor because the true'focus'has not been found. Liu Junhai believes that the draft for comments aimed at the core features of the Internet and the way to profit, such as the network effect, lock-in effect, big data collection application and other factors.

  他进一步解释,比如“锁定效应”,用户在大的互联网平台注册时,需要提供身份证号、银行账号等一系列真实信息,一方面用户担心这些信息袒露给互联网公司是否安全,但同时又离不开这个平台,购物支付、出行都需要它,这种依赖本身也是锁定效应。

He further explained that such as the \"lock-in effect \", where users need to provide a series of real information such as id number, bank account number and so on when registering on a large internet platform, while users are worried about whether the information is safe for internet companies, but at the same time cannot be separated from the platform, shopping, payment, travel need it, this dependence itself is also lock-in effect.

  在他看来,此次征求意见稿给出了认定互联网企业具有市场支配地位的几个指标,也为执法中认定互联网企业滥用市场支配地位提供了依据。

In his opinion, the draft gives several indicators that Internet companies have a dominant position in the market, but also for the law enforcement that Internet companies abuse the dominant position in the market.

  “旧法”规定,经营者违反本法规定,达成并实施垄断协议的,由反垄断执法机构责令停止违法行为,没收违法所得,并处上一年度销售额百分之一以上百分之十以下的罚款;尚未实施所达成的垄断协议的,可以处五十万元以下的罚款。

“The" Old Law "stipulates that any business operator who, in violation of the provisions of this Law, enters into or implements a monopoly agreement, shall be ordered by the anti-monopoly law enforcement agency to stop the illegal act, confiscate the illegal gains and impose a fine of not less than one percent but not more than ten percent of the sales volume of the previous year.

  征求意见稿拟规定:经营者违反本法规定,达成并实施垄断协议的,由反垄断执法机构责令停止违法行为,没收违法所得,并处上一年度销售额百分之一以上百分之十以下的罚款;对于上一年度没有销售额的经营者或者尚未实施所达成的垄断协议的,可以处五千万元以下的罚款。

The drafts for soliciting opinions stipulate that if an operator, in violation of the provisions of this Law, enters into or implements a monopoly agreement, the anti-monopoly law enforcement agency shall order it to stop the illegal act, confiscate the illegal gains and impose a fine of not less than one percent but not more than ten percent of the sales volume of the previous year; and a fine of not more than 50 million yuan may be imposed on an operator who has not sold the previous year or has not yet implemented the monopoly agreement reached.

  此外,对于行业协会的垄断行为处罚标准也更加严厉,处罚上限由五十万元增至五百万元。“旧法”规定,行业协会违反本法规定,组织本行业的经营者达成垄断协议的,反垄断执法机构可以处五十万元以下的罚款。

In addition, the penalties for monopolistic acts for trade associations are more stringent, with the maximum penalty increased from $500,000 to $5 million. The \"Old Law\" stipulates that anti-monopoly law enforcement agencies may impose a fine of not more than 500,000 yuan on trade associations that, in violation of the provisions of this Law, organize operators in their trade to reach a monopoly agreement.

  征求意见稿拟规定:行业协会违反本法规定,组织经营者达成垄断协议的,由反垄断执法机构责令停止违法行为,可以处五百万元以下的罚款。

If a trade association violates the provisions of this Law by organizing a monopoly agreement, the anti-monopoly law enforcement agency shall order it to stop the illegal act and may impose a fine of not more than 5 million yuan.

  中国政法大学副校长时建中认为,这一条款增加了违法成本,“过去如果上一年度没有销售额的经营者达成的协议,实际上是不需要承担任何法律责任了,实际上是规避了法律规定。这一次弥补了空白,即使上一年度没有销售额,如果达成垄断协议的话,仍然可以处5000万元以下罚款,这样就增加了或者加大了垄断协议的违法成本。”

Shi Jianzhong, vice-president of China University of Political Science and Law, argued that the clause added to the cost of breaking the law.\"If an agreement was reached in the past year by an operator who did not have sales, there was actually no need to assume any legal liability and was actually circumventing the legal provisions. This time, even if there were no sales in the previous year, a fine of less than 50 million yuan would be imposed if a monopoly agreement was reached, which would increase or increase the illegal cost of a monopoly agreement.

  记者注意到,此次征求意见稿新增公平竞争审查有关条款。例如,征求意见稿第九条规定:国家建立和实施公平竞争审查制度,规范政府行政行为,防止出台排除、限制竞争的政策措施。

The reporter noted that the draft fair competition review of the new articles. For example, article 9 of the draft for comments provides that the State shall establish and implement a fair competition review system, regulate the administrative conduct of the Government, and prevent the introduction of policy measures to exclude and restrict competition.

  第四十二条提及,行政机关和法律、法规授权的具有管理公共事务职能的组织,在制定涉及市场主体经济活动的规定时,应当按照国家有关规定进行公平竞争审查。

Article 42 It is mentioned that administrative organs and organizations with functions of managing public affairs authorized by laws and regulations shall conduct fair competition examination in accordance with relevant regulations of the state when formulating provisions concerning economic activities of market subjects.

  早在2016年6月,针对地方保护、区域封锁、违法给予优惠政策等现象,国务院出台《关于在市场体系建设中建立公平竞争审查制度的意见》。此后,公平竞争审查制度在全国推开。

As early as June 2016, in response to local protection, regional blockade, illegal preferential policies and other phenomena, the State Council issued the \"opinions on establishing a fair competition review system in the construction of the market system \". Since then, the fair competition review system has been rolled out throughout the country.

  记者注意到,近年来多地行政部门因滥用权力排除、限制竞争,违反公平竞争审查规定,被国家市场监管总局密集通报。例如,据国家市场监管总局通报,原长沙市卫生和计划生育委员会于2016年印发《关于加强医院太平间殡葬服务的通知》,变相指定明阳山殡仪馆为唯一殡仪服务机构。湖南省工商局要求其对通知内容进行公平竞争审查,随后原长沙卫计委废止了上述文件,并制发了新文件。

Reporters noted that in recent years, many administrative departments have been intensively notified by the State Administration of Market Supervision because of abuse of power to exclude and restrict competition, in violation of fair competition review regulations. For example, according to the State Administration of Market Supervision, the former Changsha Municipal Health and Family Planning Commission issued a notice on strengthening funeral services in hospital morgues in 2016, disguised as the designated Ming Yangshan Funeral Home as the sole funeral service. The Hunan Provincial Bureau of Industry and Commerce requested it to conduct a fair competition review of the contents of the notice, and then the former Changsha Health and Family Planning Commission abolished the above documents and issued new ones.

  这是在法律层面首次将公平竞争审查制度写入其中。刘俊海认为,此次公平竞争审查入法是为地方政府划了“红线”。

This is the first time at the legal level that a fair competition review system has been included. Liu believes that the fair competition review into the law is for the local government to draw a \"red line.\"

  公平竞争审查制度要求政府在制定涉及市场主体经济活动的政策措施时,以是否限制竞争为标准加以审查,并据此决定政策能否出台或选择替代方案。简而言之,公平竞争审查是一项防范行政性垄断行为的制度,用以规范政府行为,防止政府出台排除、限制竞争的政策。

The fair competition review system requires the Government to review policy measures in relation to the economic activities of the main market players with the criteria of restricting competition and to decide whether the policy can be introduced or selected as an alternative. In short, fair competition censorship is a system to guard against administrative monopolies to regulate government behavior and prevent government policies to exclude and restrict competition.

  目前,公平竞争审查制度已在全国基本建立。2019年4月,国家市场监管总局副局长甘霖在国新办吹风会上介绍,截至2019年2月底,国务院各个部门、各省级政府、98%的市级政府、92%的县级政府,四级政府都已开展了审查工作,全国共审查新出台文件43万份。

At present, the fair competition review system has been basically established throughout the country. By the end of February 2019, the State Council departments, provincial governments,98 percent of the municipal governments and 92 percent of the county-level governments had carried out the review, with a total of 430,000 new documents being reviewed nationwide, said Gan Lin, deputy director of the State Administration of Market Supervision at a briefing at the State New Office in April 2019.

  国家市场监管总局副局长甘霖在发布会上介绍,《反垄断法》实施十年来,我国依法打击垄断行为。截至2018年10月底,共查处滚装货物国际海运企业案、山西电力案等垄断协议案件165件,高通案、利乐案等滥用市场支配地位案件55件,累计罚款金额超过110亿元人民币。实践证明,通过不断加强反垄断执法,促进了全国统一开放、竞争有序的市场体系形成。

Gan Lin, deputy director of the State Administration of Market Supervision, said at the press conference that in the past ten years, China has cracked down on monopoly according to law. By the end of October 2018, a total of 165 cases of monopoly agreement such as ro-ro cargo international maritime enterprise case, Shanxi electric power case and so on had been investigated and dealt with,55 cases of abuse of market dominant position such as Qualcomm case and Lile case, with a cumulative fine of more than 11 billion RMB. Practice has proved that through the continuous strengthening of anti-monopoly law enforcement, promote the formation of a unified and open, orderly competition market system.

  同时,《反垄断法》的实施保护了消费者和经营者的合法权益。甘霖说,十年来,我们围绕消费者和经营者反映强烈的突出问题,严厉查处汽车、燃气、供电、供水、电信、黄金饰品、乳粉等民生领域价格垄断行为,开展公用事业限制竞争和垄断行为专项整治,查处交通、医药、电力、教育、金融、保险等民生领域的滥用行政权力排除、限制竞争案件。

At the same time, the implementation of the Anti-monopoly Law protects the legitimate rights and interests of consumers and operators. Over the past decade, we have dealt severely with price monopolies in areas such as automobiles, gas, electricity, water supply, telecommunications, gold ornaments, milk powder and other areas of people's livelihood. We have carried out special rectification of public utility restrictions on competition and monopoly practices, investigated and dealt with cases of abuse of administrative power in areas such as transportation, medicine, electricity, education, finance, insurance and other areas of people's livelihood.

  在此次发布会上,甘霖透露《反垄断法》即将修订。他指出,随着我国经济社会快速发展,全球经济环境发生变化,现行的《反垄断法》当中部分条款已经不能完全适应现在和将来的需要,“在修订研究过程中,重点要解决在执法实践中遇到的最迫切问题”。(记者许雯)

In this press conference, Ganlin revealed that the \"antitrust law\" is about to be revised. He pointed out that with the rapid economic and social development of our country, the global economic environment has changed, and some of the provisions of the current Anti-monopoly Law can no longer fully meet the needs of the present and the future,\" in the course of the revision of the study, we should focus on solving the most urgent problems encountered in the practice of law enforcement \". (Xu Wen, journalist).