經營者集中反壟斷控制限制性條件的比較分析和選擇適用

多年來，反壟斷界一直熱議結構條件和行為條件孰優孰劣。歷史上，美國偏好結構條件並引領各國立法執法，中國因較多適用行為條件而常遭詬病。美國已從結構條件優先轉向問題導向的平等適用，法國、澳大利亞等也曾大量適用行為救濟。事實上，兩者各具利弊，都是解決反競爭問題的有效工具。執法機構應跳出結構和行為非此即彼的局限，從解決反競爭問題的角度，從更廣闊的視角評估禁止、無條件批准、附條件批准等解決方案。結合中國多適用行為條件的歷史，建議立法上完善行為條件的類型、多層次監督、複審和糾紛快速解決機制；執法上增強行為條件的針對性、有效性和可操作性，控制監管成本，考慮平行審查。

Over the years, structural conditions and behavioral conditions have always been hot topics in the anti-monopoly community. Historically, the United States’ preference for structural conditions has been leading the trend of legislation and law enforcement in many countries. The Ministry of Commerce of China has been criticized for its frequent application of behavioral conditions. The United States has now shifted its priority from structural conditions to problem-oriented equal application, while France, Australia and other jurisdictions have also applied a large number of behavioral remedies. As a matter of fact, structural and behavioral conditions have their own advantages and disadvantages, and are both effective tools for addressing anti-competitive issues. Agencies should jump out of the limitations of either structural or behavioral conditions. They need to take the perspective of eliminating anti-competitive effects and improving efficiency, and adopt a broader approach to assess different solutions such as prohibition, unconditional approval, and conditional approval. Given China’s past record of inclination for behavioral conditions, it is recommended that, in terms of legislation, rules on the types of behavioral conditions, as well as multi-level supervision, review and rapid resolution of disputes thereof should be improved; in terms of enforcement, specificity, effectiveness and operability of behavioral conditions should be enhanced, and regulatory cost should be controlled by taking parallel review.