New antitrust law consolidates corporate compliance base stone

◎ Text "The Fighter" magazine specially writes Shida Guo Jiahao Zhao Pan

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The antitrust law is the core rules that companies need to follow the market competition in my country's socialist market economy. With the continuous strengthening of antitrust law enforcement and the formal implementation of antitrust law amendments, antitrust will become an important part of the corporate compliance system. Compared with the compliance of general enterprises, antitrust has a certain uniqueness. It requires enterprises to formulate and implement an effective antitrust system in a timely manner to jointly create a fair and competitive market rule of law.

Anti -monopoly compliance necessity

The behavior regulated by the antitrust law often touches the core business interests of the enterprise. For example, the rules of the vertical protocol (referring to the agreement between the operator and the counterparty) involve the management of the enterprise distribution system; Combination; rules for the abuse of market dominance involve all aspects of market behavior of market dominance companies, and also affect companies that have traded transactions with companies with market dominance.

For enterprises, each of the above items may belong to the category of major business decisions, so most of the matters involved in the antitrust mechanism are not unilaterally handled by legal affairs. Therefore, from the beginning of the highest manager, from top to bottom, the "unified thinking and improving awareness" of antitrust of antitrust is the key to the success or failure of antitrust work. To do this, it is necessary to thoroughly promote the necessity of antitrust, and the amendment of the antitrust law provides an excellent opportunity.

The antitrust law stipulates extremely severe punishment for monopoly behaviors. If the core provisions of the Anti -Monopoly Law on the monopoly agreement, the abuse of market dominance, and the centralized declaration of operators, the fine limit reaches 10%of the full -caliber sales of enterprises in the previous year. The fines are expanded (2 to 5 times). In addition, the corporate monopoly behavior may also make the legal representative, principal and direct responsible persons of the enterprise being fined under RMB 1 million in accordance with the Antitrust Law. Since the establishment of the National Anti -Monopoly Bureau in November 2021, my country's antitrust law enforcement forces have been greatly improved, and the normalization of antitrust law enforcement is its inevitable result.

Anti -monopoly compliance system should be adapted to local conditions

The effective antitrust system is targeted and executive. Enterprises should establish an antitrust system that conforms to its own characteristics according to business conditions, scale, and industry characteristics.

First of all, the focus of the antitrust system of different enterprises should be different. For example, for companies that depend on the huge distribution system, the antitrust system can focus on the risk of preventing the inappropriate control of dealers constituted a vertical monopoly agreement; for industries with a high degree of homogeneity of products, the anti -monopoly system needs to be strived to avoid avoiding it to avoid The risk of manipulating prices and dividing the market in a horizontal monopoly agreement. The so -called "focusing" does not mean that enterprises can ignore antitrust regulations other than focusing, but refer to the system regulations that should be refined or strengthened in the field of focusing. For example, for industries (such as chemical industry, building materials, etc.) with outstanding risks of horizontal monopoly agreements, enterprises should refine the provisions of participating in industry conferences, clarify the processing methods when participating in different situations, and set the meeting reporting mechanism and compliance compliance when participating in different situations. Commissioner accompanies the mechanism of participating in the meeting.

Secondly, the size of the enterprise is different, and the organizational structure of its antitrust system should be different. For enterprises with high possibilities involving monopoly, their setting of relatively independent antitrust systems and management structures is relatively high, and the role positioning of senior managers in the antitrust system should also be more important. For enterprises with smaller enterprises and smaller anti -monopoly compliance risks, they can consider integrating their antitrust system into existing general compliance systems.

It should be noted that although the scale of some enterprises is small, the problem of the industry's monopoly agreement is high, which is the focus of antitrust law enforcement, or the market share of the product produced is high, and the possibility of monopoly is high. In addition, the antitrust system is different from general enterprise compliance. It is often necessary to participate in the high degree of participation of members outside the legal team. Therefore, when incorporating the antitrust system into the existing general compliance system of the enterprise, it is often not only simply joining the physical rules. It also needs to be adjusted in a procedural and participants.

In recent years, the state and localities have provided more references to enterprises by issuing antitrust guidance. Enterprises can learn from many parties when building their own compliance system.

Monopoly risk identification and processing

Monopoly risk recognition can be divided into two forms: special assessment and daily identification.

Special assessment includes a targeted antitrust system, and also includes the key monopoly risk identification that regularly develops after the implementation of the antitrust system. The reason why monopoly risk identification needs to be carried out on the one hand is that on the one hand, with the development of the business, the situation involved in corporate antitrust may continue to change; on the other hand, because the national antitrust policies and law enforcement priorities may continue to evolve continuously Essence

Taking public business enterprises such as gas, water supply, and power supply as an example, because such enterprises usually have franchise rights in a certain area, they are identified as a market dominance position. It is based on the business behavior of comprehensively sorting out the business monopoly business of law enforcement cases, and detailed assessment and analysis of the suspected acts of abuse of market dominance (such as designated transaction objects, products that are currently competing for market -oriented competition, excessive pricing, etc.). Daily identification focuses on the construction of executable and effective processes. On the basis of the participation of business, finance, and legal affairs, daily identification work, through the clear report line and approval system (usually contains standard reporting and approval document templates), it should be able to quickly follow the preliminary special assessment according to the preliminary special assessment As a result, the daily behavior is seated and fast decisions. However, when more complicated or new problems occur, it should still conduct a special evaluation of it.

In practice, the legal team is often facing the huge pressure of the business team, and is required to achieve compliance on the basis of not doing substantial changes. This is often unrealistic under the antitrust mechanism. Because the antitrust law is evaluated when the behavior evaluation is evaluated by behavior evaluation Focusing on economic effects, monopoly risks often require substantial change in specific business behaviors. For example, the monopoly protocol under the antitrust law can be achieved in writing or verbally, and it can even be manifested as a form of collaborative behavior. It cannot avoid the risk of monopoly agreement by changing the form of the monopoly agreement; Agreement, even if the fixed resale price clause is replaced with the recommended resale price, if the operator actually restricts the transaction of the counterparty to the re -sale price according to the suggestion of reward or punishment measures Manifestations.

Therefore, it is necessary to promote the establishment of a correct awareness of the anti -monopoly system and ensure that the business personnel's final implementation of the proposal of monopoly risk treatment.

In view of time pressure, in the early period of monopoly risk special assessment phase, it is advisable to synchronize the type of types of types of types of monopoly risks faced by enterprises, and to institutionalize as much as possible to improve the efficiency of monopoly risk treatment. For more complicated or new problems that cannot be typed, it is advisable to introduce special special treatment in time.

Key content of antitrust compliance system

Anti -monopoly manual and internal training are a core content of the corporate antitrust system. Through internal training and employee compliance manuals, enterprises help employees to initially understand the compliance boundaries of "can" and "cannot do", so as to help them have a preliminary judgment when facing specific business scenarios and adopt the correct response method.

Anti -monopoly internal training and compliance manuals are focusing on guidelines. In addition to introducing important legal terms and legal responsibilities, it is advisable to reference cases, simulation scenarios, Q & A and other forms to make relevant content easy to understand and operate employees.

Establishing a whistle report system is an important means to ensure the effective operation of the antitrust system. In practice, because monopoly behaviors usually correspond to illegal economic interests, and for personal performance, some business personnel (such as departmental director, traders, etc.) have motivation to implement acts that avoid the anti -monopoly system. The practice of these business personnel is likely to be separated from the company's overall interests. The economic benefits obtained by the monopoly behavior on individual business lines are likely to be far from compensation. loss. The compliance report system of whistle is a good medicine to solve such problems.

The successful whistle -blower system usually meets the smooth reporting channels, the perfect protection of the reporter, and the full reporters of the reporters. The lack of any of the requirements may not be able to achieve the expected results.

The regular evaluation and improvement of the antitrust system is a powerful guarantee for the vitality of the compliance system. The anti -monopoly system should be dynamic and new, and it is constantly adjusted with changes in market environment, policies and laws, regulatory environment, and business content.

The regular assessment of the effect of the anti -monopoly system can include two aspects: substance and procedures. In essence, the anti -monopoly effect can be verified by random inspections and external audits; in terms of procedures, the reporting conditions and audit processes can be optimized through interviews, questionnaire surveys and other methods.

(Author unit: Beijing Hankun Law Firm)

Editing ｜ Cui Xiaolin

Edit ｜ Huiningning

School pair ｜ Zhang Bo Zhang Xuehui

This article is published in the "Legal person" magazine in August 2022 Total 222 Issue 222 Insertament Governance Section

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