企业合并行为的竞争法分析

对企业合并进行控制是竞争法的基本内容,而其中最核心的问题,是评价企业合并行为所依据的实体标准。基本内容包括对合并行为的反竞争影响,及其产生的积极效果。由于企业合并主要是通过改变市场结构而影响竞争,因而在对其进行分析时,一般首先分析合并行为对所在市场集中度产生的影响,这主要通过赫芬达尔指数来反映,对于发生在指数较低的市场上,或发生在集中度较高的市场上,但并未导致指数大幅度提高的企业合并行为,认定其不会产生严重的反竞争效果,可以批准。其他的合并行为则要由竞争主管机关进一步分析,主要考察该行为的反竞争效果,包括单边效果与协调效果;然后再考察存在哪些抵消因素。经过比较后,如果积极效果大于消极效果,则予以批准。     

Competition for Sustainability: Sustainable Development Concerns in National and EC Competition Law

Competition law has become increasingly important in regulating the economy. This article aims to explore how domestic competition law relates to sustainable development. It distinguishes three ways that competition law can take into account environmental and social priorities: through substantive competition rules fostering social or ecological purposes; through exceptions, exemptions and exclusions; and through the enhanced application of competition laws. The first form is very interesting and currently not very widely used. Only a very few countries, such as South Africa, have included substantive provisions to promote social development in their competition laws. Most countries allow for some version of the second form of sustainable competition law. Few countries' laws are as outspoken about their public policy goals as is Spain in its new draft competition law. This new draft law explicitly lists environmental protection and social policies as grounds upon which the government could repeal a competition decision. The third form is relatively unproblematic as it creates a win-win situation for competition and sustainable development. This article surveys some of the most interesting competition law developments across the world and indicates where these domestic regimes take into account environmental or broader social issues when making competition-related decisions such as merger approvals.     

欧共体对跨国并购的反垄断监管

在对跨国并购进行反垄断监管方面,欧共体合并控制法的新发展主要体现在三个方面:(一)适用条件。4064/89号条例适用于在共同体范围内具有影响的企业合并。1310/97号条例扩大了对建立合营企业的管辖权,并规定了“具有共同体影响”的新标准,确立了“一站审查”制度,139/2004号条例则对此制度作了进一步完善。(二)实体审查标准。4064/89号条例采用“市场支配地位”审查标准,139/2004号条例采用“严重阻碍有效竞争”审查标准。(三)合并控制程序。原欧共体将企业合并控制的程序分为合并申报、第一阶段审查和第二阶段审查,139/2004号条例对此实施了一系列程序改革,规定计划中协议或投标即可申报,增加了申报前移送,并修改了委员会的审查时间表。     

Integrating Environmental Protection and EU Competition Law: Why Competition Isn't Special

One of the biggest challenges facing environmental policy makers at present is that of integrating environmental protection goals into economic policy areas. Unless this is genuinely achieved, it is clear that environmental degradation will continue apace. Though one of the EU's most important areas of economic competence is competition policy, many policy makers and commentators reject the notion that environmental concerns should play a significant role in EU competition analysis. In that light, this article addresses two key questions. First, should this approach apply? Second, if not, what are the principles that govern how environmental protection requirements should be taken into account by decision makers applying EU competition law? In answering these questions, the article puts forward three theoretical arguments as to why, and how, the environmental benefits and damage flowing from goods and services should be taken into account by EU competition decision makers, based, respectively, on legal systematic, governance and economic reasoning.     

Measuring Perceptions of Economic Inequality and Justice: An Empirical Assessment

Social Justice Research - How should we measure people’s perceptions of—and attitudes about—economic inequality? A recent literature seeks to quantify the level of...     

Consolidation and Competition in Emerging Market: An Empirical Test for Malaysian Banking Industry

This paper investigates the effect of bank consolidation on market structure and competition in Malaysian banking industry during the years of 1998–2005. The study evaluates the degree of competition using H-statistic proposed by Panzar and Rosse (1987 Testing for monopoly equilibrium. J Ind Econ 35:443–456). The estimated H-statistics are positive ranging from 0.53 to 0.81 and the Wald test for the market structure for monopoly or perfect competition is rejected. The results imply that the financial institutions in Malaysia earned their revenue in the condition of monopolistic competition with the traditional interest-based market is significantly less competitive than the overall market. The evidence is however insufficient to show that there is an increase in competition due to a change in the market structure. Thus, the findings suggest that additional competition policy is needed to ensure competition in the Malaysian banking market in view of further consolidation in the banking sector.     

Democracy and Rule-making Within the EC: An Empirical and Normative Assessment

The object of this article is to consider the democratic legitimacy of the structure of legislative authority which exists within the EC. The analysis draws upon the work of Joseph Weiler, and accepts that different conceptions of democracy may best explain different aspects of the Community. The present article addresses only what Joseph Weiler terms the supranational aspects of the Community and suggests that a replication model of democracy can help us to understand the division of competence in this area. While changes can undoubtedly be made which will improve the operation of democracy within this sphere of the Community, and such changes are suggested in the subsequent analysis, it is argued that the republican model provides a sound basis on which to build.     

The Sustainability of University-Industry Research Collaboration: An Empirical Assessment

The concept of university-industry collaboration is an important social experiment in the nation's innovation system. This study examines the sustainability of this collaborative experience by focusing on the actual give-and-take outcomes between university faculty members and industrial firms. Based on two separate but similar surveys conducted in 1997, one for faculty members and another for industry technology managers, the study reports that participants in research collaboration appear to realize significant benefits, some expected and others unexpected. The most significant benefit realized by firms is an increased access to new university research and discoveries, and the most significant benefits by faculty members is complementing their own academic research by securing funds for graduate students and lab equipment, and by seeking insights into their own research. Reflecting on their collaborative experience, an overwhelming majority of these participants say that in the future they would expand or at least sustain the present level of collaboration.     

Empirical and Legal Perspectives on the Impact of Pretrial Publicity: Effects and Remedies

Law and Human Behavior -     

New Directions in EC Competition Policy: The Case of Merger Control

Abstract:  This article examines two new directions of EC competition law, by taking the example of Merger Control. The first is factual, since the Commission has accepted an increased role for economic analysis under the new Regulation. The second examines the role that EC competition law could play in the achievement of the Lisbon Strategy objectives. At present, both directions interact with one another, as the importance and the aims of competition rules depend to a large extent on the economic theory when applying legal rules. Traditionally, the EU has rejected the creation of an industrial policy that is considered to be inefficient. But the intensification of international competition has to induce the EU to open up the debate in relation to the meaning to be attributed to a 'European industrial strategy'. To accomplish a 'dynamic and competitive' European economy, current policies, mainly competition policy, should consider taking into account international competitiveness by resolving the question of the economic theoretical context used to review mergers.     

The Societal Cost of the Exclusionary Rule: An Empirical Assessment

A key criticism that has emerged in the debate over the search and seizure exclusionary rule is that it exacts heavy societal costs in the form of lost prosecutions and that such costs outweigh any demonstrated social benefits. This article examines the costs of three exclusionary rules using data collected for 7,500 cases in a nine-county study of criminal courts in three states. It emphasizes motions to suppress physical evidence but for comparative purposes also includes motions to suppress confessions and identifications. The results show that the various exclusionary rules exact only marginal social costs. Motions to suppress physical evidence are filed in fewer than 5% of the cases, largely drug and weapons cases, while serious motions to suppress identifications and confessions are filed in 2% and 4% of the cases. The success rate of motions to suppress is equally marginal. Successful motions to suppress physical evidence occur in only 0.69% of the cases, while successful motions to suppress identifications or confessions occur much less often. Moreover, not all who successfully suppressed evidence escaped conviction, especially when only an identification or a confession was suppressed. In all, only 46 cases—less than 0.6% of the cases studied—were lost because of the three exclusionary rules combined, most of them involving offenses that would have incurred less than six months' imprisonment or first offenders. Finally, the impact of unsuccessful motions on subsequent plea bargaining was found to be marginal; only unsuccessful motions to exclude confessions resulted in any real sentencing concessions.     

Clinical Assessment of Parents in Child Protection Cases: An Empirical Analysis

We investigated the content and legal relevance of clinical evaluations of parents conducted in child abuse and neglect cases. The sample consisted of 190 mental health evaluation reports, randomly selected from major providers, that had been completed on parents involved in a large, urban juvenile court system. We coded evaluations on 170 objective and qualitative characteristics in order to assess for criteria recommended in the forensic literature. We compared evaluations across groups categorized by type (e.g., psychological, psychiatric, bonding/parenting, substance abuse) and where the assessments were performed (outside or inside the court). We found numerous substantive failures to meet those criteria for forensic relevance. Evaluations of parents typically were completed in a single session, rarely included a home visit, used few if any sources of information other than the parent, often cited no previous written reports, rarely used behavioral methods, stated purposes in general rather than specific terms, emphasized weaknesses over strengths in reporting results, and often neglected to describe the parent's caregiving qualities or the child's relationship with the parent. Some relevant differences were evident across assessment groups, pointing to examples of more thorough, parenting-specific evaluation practices. We recommend ways to improve current practices in forensic parenting assessment.     

The Ethical Health Lawyer: An Empirical Assessment of Moral Decision Making

Writing in 1999, legal ethics scholar Brad Wendel noted that "[v]ery little empirical work has been done on the moral decision making of lawyers." Indeed, since the mid-1990s, few empirical studies have attempted to explore how attorneys deliberate about ethical dilemmas they encounter in their practice. Moreover, while past research has explored some of the ethical issues confronting lawyers practicing in certain specific areas of practice, no published data exists probing the moral mind of health care lawyers. As signaled by the creation of a regular column "devoted to ethical issues arising in the practice of health law" in the Journal of Law, Medicine & Ethics , the time to address the empirical gap in the professional ethics literature is now. Accordingly, this article presents data collected from 120 health care lawyers. Presenting this population with a number of hypothetical scenarios relating to how they would respond when confronting an ethical dilemma without an obvious solution or when facing a situation in which their personal values were in tension with their professional obligations, this article represents a first step toward better understanding how lawyers who practice in health care settings understand and resolve the moral discomfort they encounter in their professional lives.     

跨国竞争关系多元化法律调控机制的实证研究

本文试图超越基于传统法理学的形式主义"二分法"而把竞争割裂成国内竞争法和国际经济法的不同议题进行分别研究的局限性,借助名噪一时的欧盟CR法案和温州打火机反倾销案,经验地分析和具体地揭示WTO背景下经济竞争关系的"跨国"新层面,以及其中所蕴含的多元化法律调控机制;进而丰富和验证我们关于经济法具有"法益复合性"和"实现机制多元化"特点的基本理论判断,并为填补目前竞争关系研究中的经验实证不足提供一个方向.     

受压迫股东的救济路径研究:股东受信义务与法定压迫救济制度

股东保护机制是公司法的核心问题之一.由于公司所有权结构的特点,股东之间的压迫问题已成为公司管理中的重要考量.我国公司法第20条原则性地提出了对股东不得滥用权利的要求.基于该原则建立具体的股东压迫救济制度已成为公司法研究和修订中非常重要的议题,也将对提升我国的营商环境大有帮助.股东受信义务和法定压迫救济制度是国际上较为常见的两大受压迫股东的救济途径.通过比较这两大救济制度的理论与实践,斟酌利弊,深入研究两大制度间的关系及分析域外司法实践的判例,可以为我国建立受压迫股东救济制度提供可行的参考路径.