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。

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.

  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,《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 revised draft (draft for public comments) proposed for the first time to include new forms of Internet business and substantially increase the penalty standards.

  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 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.

  此外,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。

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.

  中國政法大學副校長時建中認為,這一條款增加了違法成本,“過去如果上一年度沒有銷售額的經營者達成的協議,實際上是不需要承擔任何法律責任了,實際上是規避了法律規定。這一次彌補了空白,即使上一年度沒有銷售額,如果達成壟斷協議的話,仍然可以處5000萬元以下罰款,這樣就增加了或者加大了壟斷協議的違法成本。”

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.

  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.

  早在2016年6月,針對地方保
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