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反壟斷法迎大修互聯網壟斷擬入法處罰金額擬漲百倍
2020-01-06 00:06  www.idc-online.cn

  新京報訊(記者許雯)施行11年的《反壟斷法》迎來首次“大修”。1月2日起,國家市場監管總局就《反壟斷法》修訂草案公開征求意見,2020年1月31日截止。

Beijing News (Reporter Xu Wen)11 years of implementation of the \"Antimonopoly Law\" ushered in the first \"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.

  現行《反壟斷法》于2008年8月1日正式實施,這也是該法實施11年來首次修訂。與“舊法”相比,《反壟斷法修訂草案(公開征求意見稿)》首次擬將互聯網新業態列入,并大幅提升處罰標準。

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 draft revised anti-monopoly law (draft for public comments) proposed for the first time to include new forms of internet business and substantially increase the penalties.

  現行《反壟斷法》明確規定,具有市場支配地位的經營者,不得濫用市場支配地位,排除、限制競爭。認定經營者具有市場支配地位,應依據其市場份額、相關市場競爭狀況、經營者控制銷售市場或原材料采購市場的能力等6項因素。

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.

  除前述普遍適用的依據外,此次征求意見稿新增:認定互聯網領域經營者具有市場支配地位還應當考慮網絡效應、規模經濟、鎖定效應、掌握和處理相關數據的能力等因素。

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.

  中國人民大學商法研究所所長劉俊海接受新京報記者采訪時表示,“舊法”出臺時,很多互聯網企業還沒有成氣候,更談不上濫用市場支配地位的問題。十多年來,互聯網在人們生活中的地位越來越重要。但長期以來,互聯網企業濫用壟斷優勢地位,游離在《反壟斷法》之外,“霸王條款”日漸升級,侵犯消費者知情權、選擇權、公平交易權。

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.

  “過去我們僅僅按照消費者權益保護法有關條款來執行,但收效不佳,就是因為真正的‘病灶’沒有找到。”劉俊海認為,此次征求意見稿瞄準了互聯網的核心特征和盈利方式,例如網絡效應、鎖定效應、大數據采集應用等因素。

“In the past, we have only followed the relevant provisions of the Consumer Protection Act, but the results have 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.

  他進一步解釋,比如“鎖定效應”,用戶在大的互聯網平臺注冊時,需要提供身份證號、銀行賬號等一系列真實信息,一方面用戶擔心這些信息袒露給互聯網公司是否安全,但同時又離不開這個平臺,購物支付、出行都需要它,這種依賴本身也是鎖定效應。

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.

  在他看來,此次征求意見稿給出了認定互聯網企業具有市場支配地位的幾個指標,也為執法中認定互聯網企業濫用市場支配地位提供了依據。

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.

  “舊法”規定,經營者違反本法規定,達成并實施壟斷協議的,由反壟斷執法機構責令停止違法行為,沒收違法所得,并處上一年度銷售額百分之一以上百分之十以下的罰款;尚未實施所達成的壟斷協議的,可以處五十萬元以下的罰款。

“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.

  征求意見稿擬規定:經營者違反本法規定,達成并實施壟斷協議的,由反壟斷執法機構責令停止違法行為,沒收違法所得,并處上一年度銷售額百分之一以上百分之十以下的罰款;對于上一年度沒有銷售額的經營者或者尚未實施所達成的壟斷協議的,可以處五千萬元以下的罰款。

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.

  對于行業協會的壟斷行為處罰標準也更加嚴厲,處罰上限由五十萬元增至五百萬元。“舊法”規定,行業協會違反本法規定,組織本行業的經營者達成壟斷協議的,反壟斷執法機構可以處五十萬元以下的罰款。

The penalties for monopolistic behaviour in trade associations are also 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.

  征求意見稿擬規定:行業協會違反本法規定,組織經營者達成壟斷協議的,由反壟斷執法機構責令停止違法行為,可以處五百萬元以下的罰款。

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.

  記者注意到,此次征求意見稿新增公平競爭審查有關條款。例如,征求意見稿第九條規定:國家建立和實施公平競爭審查制度,規范政府行政行為,防止出臺排除、限制競爭的政策措施。

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.

  第四十二條提及,行政機關和法律、法規授權的具有管理公共事務職能的組織,在制定涉及市場主體經濟活動的規定時,應當按照國家有關規定進行公平競爭審查。

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.

  這也是在法律層面首次將公平競爭審查制度寫入其中。劉俊海認為,此次公平競爭審查入法是為地方政府劃了“紅線”。

It is also 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.\"

  公平競爭審查制度要求政府在制定涉及市場主體經濟活動的政策措施時,以是否限制競爭為標準加以審查,并據此決定政策能否出臺或選擇替代方案。簡而言之,公平競爭審查是一項防范行政性壟斷行為的制度,用以規范政府行為,防止政府出臺排除、限制競爭的政策。

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.

  早在2016年6月,針對地方保護、區域封鎖、違法給予優惠政策等現象,國務院出臺《關于在市場體系建設中建立公平競爭審查制度的意見》。此后,公平競爭審查制度在全國推開。

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.

  記者注意到,近年來多地行政部門因濫用權力排除、限制競爭,違反公平競爭審查規定,被國家市場監管總局密集通報。例如,據國家市場監管總局通報,原長沙市衛生和計劃生育委員會于2016年印發《關于加強醫院太平間殯葬服務的通知》,變相指定明陽山殯儀館為唯一殯儀服務機構。湖南省工商局要求其對通知內容進行公平競爭審查,隨后原長沙衛計委廢止了上述文件,并制發了新文件。

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.

  目前,公平競爭審查制度已在全國基本建立。2019年4月,國家市場監管總局副局長甘霖在國新辦吹風會上介紹,截至2019年2月底,國務院各個部門、各省級政府、98%的市級政府、92%的縣級政府,四級政府都已開展了審查工作,全國共審查新出臺文件43萬份。

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.

  國家市場監管總局副局長甘霖在發布會上介紹,《反壟斷法》實施十年來,我國依法打擊壟斷行為。截至2018年10月底,共查處滾裝貨物國際海運企業案、山西電力案等壟斷協議案件165件,案、利樂案等濫用市場支配地位案件55件,累計罰款金額超過110億元人民幣。實踐證明,通過不斷加強反壟斷執法,促進了全國統一開放、競爭有序的市場體系形成。

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. Up to 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,55 cases of abuse of market dominance, such as the case of Li Le case, were investigated and dealt with, 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.

  同時,《反壟斷法》的實施保護了消費者和經營者的合法權益。甘霖說,十年來,我們圍繞消費者和經營者反映強烈的突出問題,嚴厲查處汽車、燃氣、供電、供水、電信、黃金飾品、乳粉等民生領域價格壟斷行為,開展公用事業限制競爭和壟斷行為專項整治,查處交通、醫藥、電力、教育、金融、保險等民生領域的濫用行政權力排除、限制競爭案件。

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.

  在此次發布會上,甘霖透露《反壟斷法》即將修訂。他指出,隨著我國經濟社會快速發展,全球經濟環境發生變化,現行的《反壟斷法》當中部分條款已經不能完全適應現在和將來的需要,“在修訂研究過程中,重點要解決在執法實踐中遇到的最迫切問題”。

At the press conference, mr gan revealed that the anti-monopoly law is about to be revised. He pointed out that with the rapid economic and social development of our country and the change of global economic environment, some of the provisions of the current anti-monopoly law cannot fully meet the needs of the present and future,\" in the process of revision and research, we should focus on solving the most urgent problems encountered in the practice of law enforcement \".