论公司法与反垄断法的良性互动

公司是《中华人民共和国公司法》《中华人民共和国反垄断法》共同保护和规范的重要市场主体。但在法学研究和执法实践中仍存在碎片化和孤岛化的现象。在两法双双迎来修改之际,立法者应推动两法的无缝对接、有机衔接、同频共振、相辅相成。两法和而不同,都致力于提升公司活力,促进市场经济健康发展,都遵循民法基本原则。公司并购反垄断执法应秉持包容审慎、处罚谦抑、服务能动的理念,充分尊重并有效保障公司的生存权和发展权;公司并购反垄断审查应采取“原则放行、例外禁止”的政策。建议反垄断执法机构继续保持法治定力,坚持反垄断执法的常态化、法治化与专业化;新《反垄断法》基于“谁主张、谁举证”的理念,确立由反垄断执法机构就公司并购具有排除、限制竞争效果的事实承担举证责任的一般原则。从公司并购限制性条件的适用范围而言,应确立“可限可不限的,坚决不限”的立场。反垄断处罚措施的选择和使用应体现过罚相当的公平原则和比例原则。建议《反垄断法》专章规定“垄断行为的预防”,增加执法机构事先预防和事中监管的法定职责。落实《反垄断法》的治本之策是激活公司治理机制。公司并购反垄断中的控制权认定规则应尽量对标对表《公司法》。自我预防垄断应成为大型公司的核心社会责任。

The Positive Interactions Between Corporate Law and Anti-Monopoly Law

Corporations are the important market players that are jointly protected and regulated by both Corporate Law and Anti-Monopoly Law.However,Corporate Law and Anti-Monopoly Law are fragmented and isolated each other in academic research and legal enforcement.It is advised that the legislature should reform Corporate Law and Anti-Monopoly Law in a harmonious,interactive,inter-connected,coherent and balanced way.Both Corporate Law and Anti-Monopoly Law,guided by the general principles of Civil Code,aim at promoting corporate vitality and the healthy development of market economy.In the process of legal enforcement,the anti-monopoly agencies should be inclusive and prudent in regulation,moderate in imposing penalties,and active in service,so as to fully respect and guarantee the corporate right of survival and sustainable development.The anti-monopoly censorship should follow the policy of general permit and exceptional forbiddance.The author advises the antimonopoly enforcement agencies to keep strong willpower based on rule of law,adhere to the normalization,rule of law and professionalism in legal enforcement.Based on the philosophy of the onus of proof on the claimant,it is suggested that the new Anti-Monopoly Law should establish the general principle that the anti-monopoly enforcement agencies shall bear the burden of proof on the fact that mergers and acquisitions have the effect of excluding and restricting competition.As far as the scope of application of the restrictive conditions of mergers and acquisitions is concerned,the restrictive conditions should be avoided whenever it is not necessary.The choice and use of anti-monopoly penalties should reflect the principle of fairness and proportionality in terms of fault and penalty.It is suggested that a special chapter of prevention of monopoly behavior should be introduced into the Anti-Monopoly Law to empower the anti-monopoly enforcement agencies to prevent the monopoly ex ante and supervise the monopoly in progress.The key strategy of the enforcement of Anti-Monopoly Law is to activate the corporate governance mechanism.The rule on determining corporate control right in case of mergers and acquisitions should be oriented towards the company law as far as possible.Self-prevention of monopoly should become the core social responsibility of giant corporations.