跨国并购之反垄断法律理由探析

【Abstract】wWw.shuoshilunwen.com From birth day, Antimonopoly Law is not a pure legal matter, which also combines with economic theory very closely. The transnational merger and acquisition is the economic domain to which Antimonopoly Law pays special attention. China is the most "active" economy body and also the country where foreign capital merger and acquisition becomes active continuously. The transnational merger and acquisition has an obviously dual effect on Chinese economic development. The transnational merger and acquisition and Multinational Corporation are the product of global economic integration. Under the tendency of global economic integration, the evolution tendency and practice experience of European Union and American Antimonopoly Law merge and regulation are worth for Chinese legislator, antimonopoly law enforcement agency and academic circles to study, summarize and learn regardless of the tranorm from structurali to behiori and the development from per se rule to rule of reason.In view of Antimonopoly Law’s "economical constitution" status and the influential roles of maintaining the market competition and promoting Chinese socialist market economy to develop healthily from now on, the author of this paper believes that it is necessary to analyze the transnational merger and acquisition and its involved antimonopoly law questions. Therefore, it is possible to correctly understand the tense relation between business combination including transnational merger and acquisition and Antimonopoly Law and learn European Union and American Antimonopoly Law’s regulation pattern and development trend towards business combination (transnational merge) with the purpose of benefiting the development and perfection of Chinese Antimonopoly Law in the future.This paper includes four chapters altogether. Starting with case that Coca-Cola Company purchases Huiyuan Fruit Juice Company with the vision of comparison, the author of the paper takes the case as the angle of view and analyzes European Union and American Antimonopoly Law’s (also called Competition Law) regulation pattern, control standard. analysis model and development trend for business combination; at last, the legal regulation insufficiency that China aims at foreign investment is summarized and the author of the paper also puts forward his personal proposalPart one:Analysis of Huiyuan Fruit Juice purchasing case. In the first place, starting with the introduction of the case, the author of the paper carries on the society and economic environment analysis about the case and points out that the fact that the common people in China pay close attention to the above-mentioned case is concerned with two following reasons:the monopoly preference when foreign capital merges the domestic enterprise in recent 10 years and the rapid growth of "Consumer Ethnocentri Tendency" of common people in China after international finance crisis. Second, the author of the paper conducts the economic analysis of Huiyuan Case, puts an emphasis on this case’s conduction effect and responds the protectioni query.Part two:transnational merger and acquisition and antimonopoly--- comparative vision. First, the author of the paper gives an overview of transnational merger and acquisition and introduces the development condition of transnational merger and acquisition in China and its forable and unforable effect on the market simultaneously. Based on this, the antimonopoly law regulation of transnational merger and acquisition is analyzed and the following aspects are also compared and analyzed:the difference between three aspects of merge legal regulation by European Union and American Competition Law, that is, the operator concentration standard, the related market standard and the defining of monopoly and those in Chinese law; the reference meaning for Chinese laws. Finally, the author of the paper introduces benefit balanced way in Antimonopoly Law.Part three:the development trend of western competition law merge and regulation---from the angle of the Case. As the Antimonopoly Law evolves from European Union’s especially US’s Case Law, so this chapter puts an emphasis on the background of typical antimonopoly cases occurring in America and the introduces two general development trends of western competition law merge and regulation:one is the tranorm from structurali to behiori, the other is the development from per se rule to rule of reason. Part four:the insufficiency and suggestion of Chinese transnational merger and acquisition law regulations. First, the author of the paper points out that Chinese national security examination legislation in the transnational merger and acquisition domain is quite weak, and suggests profiting from American law’s procedure and further revising and releasing the nation’s "Foreign Investment and National Security Law" on the basis of "Stipulation of Foreign Investor Merges Domestic Enterprise". Second, the author of the paper analyzes and points out that in regulating operator concentration domain, there is still the ambiguousness and fuzziness of monopoly defining standard for Chinese "Antimonopoly Law", which results in the oversized discretion right, lacking of supervising mechani and insufficiency of antimonopoly committee operation pattern and the personnel structure. It is suggested that:release "Operator Concentration Assesent Guide" and make the defining standard, analysis index, analysis model and assesent method of the monopoly clear; perfect the supervising mechani; relocate the State Council antimonopoly committee’s operation pattern on the legislation level, set expert committee member and professional committee member and provide consultant and the working party to support the research and work financially. Finally, the author of the paper analyzes the insufficiency of present Chinese foreign capital supervision laws and regulations and suggests establishing Chinese foreign capital supervision legal system in the center of "Foreign Investment and National Security Law" and "Antimonopoly Law", accompanied by various department formulations like the implementing regulation formulated by law execution department and the industry regulatory department.