先行修正和買家前置規則比較研究

A Comparative Study of Rules on Fix-it-First and Upfront Buyer in Merger Control Lessons for China

先行修正和買家前置是歐美經營者集中反壟斷控制執法的常用規則，我國執法實踐中也有類似需求，但尚無明文規定。美國司法部青睞先行修正，美國聯邦貿易委員會則傾向買家前置，歐盟對兩種做法都有規定，但由於執法機制的差異，與美國又有不同。在我國以行政裁決為中心的反壟斷執法機制下，附條件批准經營者集中具有行政行為屬性，以此執法機制為背景，我國類似制度建設可考慮如下建議：第一，允許當事人自行調整集中交易；第二，允許當事人先行修正集中交易；第三，參考歐美的做法和德國關於中止條件、解除條件的規定創設買家前置規則。

Rules on fix-it-first and upfront buyer, commonly used in merger control in the U. S. and the EU, are also needed in law enforcement in China, but so far there are no legal provisions as explicit basis for their application. This article reviews the origin and historical evolution of those rules, and analyzes the differences and the reasons therefor when fix-it-first and upfront buyer rules are employed by different authorities and in different law enforcement models. Drawing on the comparative analysis, the author stresses that similar rules in China would be operating in an administrative-oriented model, in which a conditional clearance decision is an abstract administrative action. Proposals for formulating the rules in China' s context are as follows: parties should be allowed to adjust their transactions on their own; parties should be allowed to fix the problems of their transactions first; and upfront buyer requirement should be established by adopting rules similar to those on suspension and termination as used in the U.S., EU and Germany.