烟台大学法学院法律硕士张川方中华人民共和国反垄断法Anti-Monopoly Law of the People’s Republic of China(Adopted at the 29th Meeting of the Standing Committee of the Tenth National People’s Congress on August 30, 2007)No.68 Order of the President of the PRCThe Anti-Monopoly Law of the People’s Republic of China, adopted at the 29th Meeting of the Standing Committee of the Tenth National People’s Congress of the People’s Republic of China on August 30, 2007, is hereby promulgated and shall go into effect as of August 1st, 2008.Hu Jintao, President of the PRCAugust 30, 2007 C- I General ProvisionsArticle 1This Law is enacted for the purpose of(为了) preventing and restraining monopolistic conducts(垄断行为), protecting fair market competition, enhancing economic efficiency(经济运行效率), safeguarding the interests of consumers and the society as a whole(社会公共利益), and promoting the healthy development of socialist market economy. 2012-10-10 16:07:22Article 2This Law is applicable to monopolistic conducts in economic activities within the territory of the People’s Republic of China; and it is applicable to monopolistic conducts outside the territory of the People’s Republic of China, which serve to eliminate or restrict(产生排除、限制影响)competition on the domestic market of China.Article 3For the purposes of this Law(本法规定的), monopolistic conducts include:(1) monopoly agreements(垄断协议)reached between undertakings(经营者);(2) abuse of dominant market position(市场支配地位) by undertakings; and(3) concentration of undertakings(经营者集中)that lead, or may lead to(具有…的效果)elimination or restriction of competition.Article 4The State shall formulate and implement competition rules(竞争规则)which are compatible with(相适应的) the socialist market economy, in order to perfect macro-economic regulation(完善宏观调控) and build up a sound(健全)market network(市场体系) which operates in an integrated, open, competitive and orderly manner.Article 5Undertakings may, through fair competition and voluntary association(自愿联合), get themselves concentrated according to law, to expand the scale of their business operations(经营规模)and enhance their competitiveness on the market.Article 6Undertakings holding a dominant position on the market may not abuse(不得滥用)such position to eliminate or restrict competition.Article 7(1) With respect to the industries which are under the control of the State-owned economic sector(国有经济成份) and have a bearing on(关系到)the lifeline of the national economy(国民经济命脉)or national security(国家安全) and the industries which exercise monopoly over the production and sale of certain commodities(实行专营专卖) according to law, the State shall protect the lawful business operations of undertakings in these industries, and shall, in accordance with law, supervise and regulate their business operations(经营活动) and the prices of the commodities and services provided by them, in order to protect the consumers’ interests and facilitate technological advance(促进技术进步).(2) The undertakings mentioned in the preceding paragraph shall do business according to law(依法经营), be honest, faithful(诚实守信)and strictly self-disciplined(严格自律的), and subject themselves to public supervision, and they shall not harm the consumers’ interests by taking advantage of their position of control or monopolistic production and sale of certain commodities(专营专卖).Article 8Administrative organs or organizations authorized by laws or regulations to perform the function of(具有…职能) administering public affairs(公共事务) may not abuse their administrative powers(行政权力)to eliminate or restrict competition.Article 9(1) The State Council shall establish an anti-monopoly commission(反垄断委员会)to be in charge of(负责)organizing, coordinating and guiding anti-monopoly work and to perform the following duties:(a) studying and drafting(拟订)policies on competition;(b) organizing investigation and assessment of competition on the market as a whole(市场总体竞争状况) and publishing assessment reports(发布评估报告);(c) formulating and releasing anti-monopoly guidelines(发布反垄断指南);(d) coordinating administrative enforcement(行政执法工作)of the Anti-Monopoly Law; and(e) other duties as prescribed by the State Council.(2) The composition of and procedural rules(工作规则)for the anti-monopoly commission shall be specified by the State Council.Article 10(1) The authority responsible for enforcement of the Anti-Monopoly Law(反垄断执法)specified by the State Council (hereinafter referred to, in general, as以下统称the authority for enforcement of the Anti-Monopoly Law under the State Council) shall be in charge of such enforcement in accordance with the provisions of this Law.(2) The authority for enforcement of the Anti-Monopoly Law under the State Council may, in light of the need of work, empower(授权)the appropriate department(相应的机构)of the people’s governments of provinces, autonomous regions or municipalities directly under the Central Government to take charge of(负责) relevant enforcement of the Anti-Monopoly Law in accordance with the provisions of this Law.Article 11Trade associations(行业协会)shall tighten their self-discipline(加强行业自律), give guidance to the undertakings in their respective trades in lawful competition, and maintain the market order in competition(市场竞争秩序).Article 12(1) For the purposes of this Law, undertakings include natural persons, legal persons, and other organizations that engage in manufacturing or selling commodities(商品经营), or providing services.(2) For the purposes of this Law, a relevant market consists of the range of the commodities(商品范围) and the range of the regions(地域范围), in which undertakings compete with each other during a given period of time for specific commodities or services (hereinafter referred to, in general, as “commodities”).C-II Monopoly AgreementsArticle 13(1) Competing(具有竞争关系的)undertakings are prohibited from concluding the following monopoly agreements:(a) on fixing or changing(固定或变更)commodity prices;(b) on restricting the amount of commodities manufactured or marketed(销售的);(c) on splitting the sales market(销售市场) or the purchasing market(采购市场) for raw materials;(d) on restricting the purchase of new technologies or equipments, or restricting the development of(限制开发) new technologies or products;(e) on joint boycotting(联合抵制) of transactions; and(f) other monopoly agreements confirmed(认定的)by the authority for enforcement of the Anti-Monopoly Law under the State Council.(2) For the purposes of this Law, monopoly agreements include agreements, decisions and other concerted conducts(协同行为) designed to eliminate or restrict competition.Article 14Undertakings are prohibited from concluding the following monopoly agreements with their trading counterparts(交易相对人):(1) on fixing the prices of commodities(物价)resold to a third party(向第三人转售);(2) on restricting the lowest prices of commodities resold to a third party; and(3) other monopoly agreements confirmed by the authority for enforcement of the Anti-Monopoly Law(反垄断执法) under the State Council.Article 15(1) The provisions of Article 13 and 14 of this Law shall not be applicable to the agreements between undertakings, which they can prove to be concluded for any of the following purposes(属于下列情形之一的):(a) to improve technologies, or to engage in research and development(研究开发) of new products; or(b) to improve product quality, reduce cost, and enhance efficiency, to unify specifications(统一规格) and standards of products, or to implement specialized division of production(专业化分工);(c) to increase the efficiency(经营效率)and competitiveness of small and medium-sized undertakings;(d) to serve public interests(实现公共利益)in energy conservation(节约能源), environmental protection and disaster relief(救灾救助);(e) to mitigate sharp decrease(严重下降) in sales volumes(销售量) or obvious overproduction caused by economic depression;(f) to safeguard the legitimate interests in foreign trade and economic cooperation with foreign counterparts(对外经济合作); or(g) other purposes as prescribed by laws or the State Council.(2) In the cases(情形) as specified in Subparagraphs (a) through (e) of the preceding paragraph, where the provisions of Articles 13 and 14 of this Law are not applicable, the undertakings shall, in addition, prove that the agreements reached will not substantially restrict(严重限制)competition in the relevant market and that they can enable the consumers to share the benefits derived therefrom(由此产生的).Article 16Trade associations may not make arrangements(组织)for undertakings within their respective trades to engage in the monopolistic practices(垄断行为) prohibited by the provisions of this Chapter.C-III Abuse of Dominant Market PositionArticle 17(1) Undertakings holding dominant market positions are prohibited from doing the following by abusing their dominant market positions:(a) selling commodities at unfairly high prices(不公平的高价)or buying commodities at unfairly low prices;(b) selling commodities below cost(低于成本价) without justifiable reasons;(c) refusing to enter into transactions(进行交易) with their trading counterparts without justifiable reasons;(d) without justifiable reasons, allowing their trading counterparts(交易相对人)to make transactions exclusively with(只能与)themselves or with the undertakings designated by them;(e) without justifiable reasons, conducting tie-in sale of commodities(搭售商品) or adding other unreasonable trading conditions(交易条件) to transactions;(f) without justifiable reasons, applying differential prices and other transaction terms(等交易条件)among their trading counterparts who are on an equal footing(条件相同); or(g) other acts of abuse of dominant market positions confirmed by the authority for enforcement of the Anti-Monopoly Law under the State Council.(2) For the purposes of this Law, dominant market position means a market position held by an undertaking that is capable of controlling the prices or quantities of commodities or other transaction terms in a relevant market(在相关市场内), or preventing or exerting an influence on(影响)the access of other undertakings to the market.Article 18The dominant market position of an undertaking shall be determined on the basis of the following factors:(1) its share on a relevant market and the competitiveness(竞争状况) on the market;(2) its ability to control the sales market(销售市场) or the purchasing market for raw and semi-finished materials;(3) its financial strength(财力)and technical conditions(技术条件);(4) the extent to which other business mangers(经营者) depend on it in transactions;(5) the difficulty(难易程度) that other undertakings find in entering the relevant market; and(6) other factors related to the determination of the dominant market position held by an undertaking.Article 19(1) The conclusion that an undertaking holds a dominant market position may be deduced from(从…推定出) any of the following circumstances:(a) the market share of an undertaking accounts for half of the total in a relevant market;(b) the joint market share(合计市场份额) of two undertakings accounts for two-thirds of the total in a relevant market; or(c) the joint market share of three undertakings accounts for three-fourths of the total in a relevant market.(2) Under the circumstance specified in Subparagraph (b) or (c) of the preceding paragraph, if the market share of one of the undertakings(有的经营者) is less than one-tenths of the total, the undertaking shall not be considered to have a dominant market position.(3) Where an undertaking that is deduced to hold a dominant market position has evidence to the contrary(有相反情况), he shall not be considered(被认定) to hold a dominant market position.C-IV Concentration of UndertakingsArticle 20Concentration of undertakings means the following:(1) merger of undertakings;(2) control over other undertakings gained by an undertaking through acquiring their shares(取得股权) or assets; and(3) control over other undertakings or being capable of exerting a decisive influence(施加决定性影响)on the same gained by an undertaking through signing contracts or other means. 2012-10-11 19:04:40Article 21When their intended concentration reaches the threshold level(申报标准) as set by the State Council, undertakings shall declare in advance(事先申报)to the authority for enforcement of the Anti-Monopoly Law under the State Council; they shall not implement the concentration(实施集中)in the absence of such declaration.Article 22In any of the following circumstances, undertakings may dispense with(摒弃，省掉)declaration to the authority for enforcement of the Anti-Monopoly Law under the State Council:(1) one of the undertakings involved in the concentration owns 50 percent or more of the voting shares or assets of each of the other undertakings; or(2) an undertaking not involved in the concentration owns 50 percent or more of the voting(有表决权的) shares or assets of each of the undertakings involved in the concentration.Article 23(1) To declare concentration(申报集中)to the authority for enforcement of the Anti-Monopoly Law under the State Council, the undertakings shall submit the following documents and materials:(a) statement of declaration(申报书);(b) explanation of the impact to be exerted(即将施加的)by the concentration on competition in a relevant market;(c) concentration agreement;(d) the financial accounting report of each of the undertakings involved in the concentration in the previous fiscal year(上一会计年度), which is audited by a certified public accountant(注册会计师) firm; and(e) other documents and materials as specified by the authority for enforcement of the Anti-Monopoly Law under the State Council.(2) The statement of declaration shall clearly state the titles(名称)of the undertakings involved in the concentration, their domiciles, business scopes(经营范围), the anticipated date(预定日期)for concentration and other matters specified by the authority for enforcement of the Anti-Monopoly Law under the State Council.Article 24In case the documents or materials submitted by the undertakings are incomplete(不完备的), the undertakings concerned shall supplement(补交)the relevant documents or materials within the time limit prescribed by the authority for enforcement of the Anti-Monopoly Law under the State Council. If they fail to do so at the expiration of the time limit, they shall be deemed to have made no declaration.Article 25(1) The authority for enforcement of the Anti-Monopoly Law under the State Council shall, within 30 days from the date it receives the documents or materials submitted by the undertakings which conform to the provisions of Article 23 of this Law, make a preliminary review(初步审查)of the concentration and make a decision whether to conduct a further review, and notify the undertakings of its decision in writing. Before the authority for enforcement of the Anti-Monopoly Law under the State Council makes such a decision, the undertakings shall not implement the concentration.(2) Where the authority for enforcement of the Anti-Monopoly Law under the State Council decides not to conduct a further review or fails to make such a decision at the expiration of the time limit(逾期), the undertakings may implement the concentration.Article 26(1) Where the authority for enforcement of the Anti-Monopoly Law under the State Council decides to conduct a further review, it shall, within 90 days from the date of decision, complete the review, decide whether to prohibit the undertakings from concentrating(禁止经营者集中), and notify them of the decision in writing. Where a decision on prohibiting the undertakings from concentrating is made, the reasons for the decision shall be given. The undertakings shall not implement concentration during the period of review(审查期间).(2) Under any of the following circumstances, the authority for enforcement of the Anti-Monopoly Law under the State Council may extend the period for review as specified in thepreceding paragraph on condition that(经)it notifies the undertakings of the extension in writing, but the extension shall not exceed the maximum(最长不得超过) of 60 days:(a) the undertakings agree to(同意照办)the extension;(b) the documents or materials submitted by the undertakings are inaccurate and therefore need to be further verified; or(c) major changes have taken place(发生重大变化) after the undertakings made the declaration.(3) Where the authority for enforcement of the Anti-Monopoly Law under the State Council fails to make a decision at the expiration of the time limit(逾期), the undertakings may implement concentration.Article 27The following factors shall be taken into consideration in the review of concentration of undertakings:(1) the market shares of the undertakings involved in concentration in a relevant market and their power of control(控制力) over the market;(2) the degree of concentration(集中度) in a relevant market;(3) the impact of their concentration on access to the market(市场进入) and technological advance;(4) the impact of their concentration on consumers and other relevant undertakings;(5) the impact of their concentration on the development of the national economy(国民经济); and(6) other factors which the authority for enforcement of the Anti-Monopoly Law under the State Council deems necessary to be considered(认为应当考虑)in terms of its impact on market competition.Article 28If the concentration of undertakings leads, or may lead, to elimination or restriction of competition, the authority for enforcement of the Anti-Monopoly Law under the State Council shall make a decision to prohibit their concentration. However, if the undertakings concerned can prove that the advantages of such concentration to competition obviously outweigh(明显大于)the disadvantages, or that the concentration is in the public interests(符合社会公共利益), the authority for enforcement of the Anti-Monopoly Law under the State Council may decide not to prohibit their concentration.Article 29Where the authority for enforcement of the Anti-Monopoly Law under the State Council does not prohibit the concentration of undertakings, it may decide to impose additional restrictive conditions(附加限制性条件) for lessening the negative impact(不利影响)exerted by such concentration on competition.Article 30The authority for enforcement of the Anti-Monopoly Law under the State Council shall, in a timely manner, publish its decision on prohibition from the concentration of undertakings(禁止经营者集中)or its decision on imposing additional restrictive conditions on the implementation of such concentration.Article 31Where a foreign investor(外资)participates in the concentration of undertakings by merging and acquiring a domestic enterprise(境内企业)or by any other means, which involves national security, the matter shall be subject to review on national security(国家安全审查)as required by the relevant State regulations(国家有关规定), in addition to the review on the concentration of undertakings in accordance with the provisions of this Law.C-V Abuse of Administrative Power to Eliminate or Restrict CompetitionArticle 32Administrative organs and organizations authorized by laws or regulations to perform the function of administering public affairs(管理公共事务) may not abuse their administrative powers to require, or require in disguised form(变相), units or individuals to deal in(经营), purchase or use only(限定)the commodities supplied by the undertakings designated by them.Article 33Administrative organs and organizations authorized by laws or regulations to perform the function of administering public affairs may not abuse theiradministrative powers to impede(妨碍) the free flow(自由流通)of commodities between different regions by any of the following means:(1) setting discriminatory charge items(收费项目), implementing discriminatory charge rates(收费标准), or fixing discriminatory prices for non-local commodities(外地商品);(2) imposing technical specifications(技术要求) or test standards(检验标准)on non-local commodities, which are different from those on local commodities of similar types(同类), or taking discriminatory technical measures (技术措施)such as repeated test and repeated certification(重复认证), against non-local commodities to restrict the access of non-local commodities to the local market;(3) adopting a special practice of administrative licensing(专门的行政许可)for non-local commodities to restrict the access of non-local commodities to the local market;(4) erecting barriers(设置关卡)or adopting other means to prevent non-local commodities from coming in or local commodities from going out; or(5) other means designed(其它手段) to impede the free flow of commodities between regions. Article 34Administrative organs and organizations authorized by laws or regulations to perform the function of administering public affairs may not abuse their administrative powers to exclude(排斥)non-local undertakings from participating, or restrict their participation, in local invitation and tendering(招标投标)by imposing discriminatory qualification requirements(资质要求) or assessment standards(评审标准), or by refusing to publish information according to law.Article 35Administrative organs and organizations authorized by laws or regulations to perform the function of administering public affairs may not abuse their administrative powers to exclude or restrict non-local undertakings from making investment or establishing branch offices locally by treating them unequally(不平等待遇) as compared with the local undertakings, or by other means. Article 36Administrative organs and organizations authorized by laws or regulations to perform the function of administering public affairs may not abuse their administrative powers to compel(强制) undertakings to engage in monopolistic conducts specified by this Law.Article 37Administrative organs may not abuse their administrative power to formulate regulations(制定规定)with content of eliminating or restricting competition.C-VI Investigation into Suspected Monopolistic ConductsArticle 38(1) The authority for enforcement of the Anti-Monopoly Law shall investigate suspected monopolistic conducts(涉嫌垄断行为) according to law.(2) All units and individuals shall have the right to report to the authority for enforcement of the Anti-Monopoly Law against(对)suspected monopolistic conducts. The latter shall keep the information confidential.(3) If the report is made in writing(举报采用书面形式) and relevant facts and evidence are provided, the authority for enforcement of the Anti-Monopoly Law shall conduct necessary investigation.Article 39(1) When conducting investigations into(调查)a suspected monopolistic conduct, the authority for enforcement of the Anti-Monopoly Law may take the following measures:(a) conducting inspections of the business places(营业场所) or relevant premises of the undertakings under investigation;(b) making inquiries of(询问)the undertakings under investigation, the interested parties, or other units or individuals involved, and requesting them to provide relevant explanations(说明有关情况); (c) consulting and duplicating the relevant documents and materials of the undertakings under investigation, the interested parties and other relevantunits and individuals, such as bills, certificates(单证), agreements, account books(会计账簿), business correspondence and electronic data;(d) sealing up or distraining relevant evidence; and(e) inquiring about(查询) the bank accounts(银行账户) of the undertakings under investigation.(2) To take the measures specified in the preceding paragraph, a written report shall be submitted for approval to the principal leading person(主要负责人) of the authority for enforcement of the Anti-Monopoly Law.Article 40(1) When the authority for enforcement of the Anti-Monopoly Law to conducts investigations into suspected monopolistic conducts, there shall be at least two law-enforcement officers(执法人员)who shall produce their law enforcement certificates.(2) The law-enforcement officers shall make written records(笔录)when conducting inquiries and investigations, which shall be signed by the persons inquired or investigated.Article 41The authority for enforcement of the Anti-Monopoly Law and its staff members are obligated to(有义务) keep confidential the commercial secrets they come to have access to(知悉的)in the course of law enforcement.Article 42The undertakings under investigation, the interested parties or other relevant units or individuals shall cooperate with the authority for enforcement of the Anti-Monopoly Law in performing their duties in accordance with law, and they shall not refuse or hinder(拒绝、阻碍)the investigation conducted by the authority for enforcement of the Anti-Monopoly Law.Article 43The undertakings under investigation and the interested parties(利害关系人)shall have the right to make statements. The authority for enforcement of the Anti-Monopoly Law shall verify the facts, justifications(理由)and evidence presented by the said undertakings or interested parties.Article 44If, after investigation into and verification of a suspected monopolistic conduct, the authority for enforcement of the Anti-Monopoly Law concludes that it constitutes a monopolistic conduct, the said authority shall make a decision on how to deal with it in accordance with law and may make the matter known to the public(向社会公布).Article 45(1) With respect to(对)the suspected monopolistic conduct which is under investigation by the authority for enforcement of the Anti-Monopoly Law, if the undertakings under investigation commit themselves to(承诺)adopt specific measures to eliminate the consequences of their conduct within a specified time limit(在一定期限之内)which is accepted by the said authority, the authority for enforcement of the Anti-Monopoly Law may decide to suspend the investigation. The decision shall clearly state the details(具体内容)of the undertakings’ commitments.(2) Where the authority for enforcement of the Anti-Monopoly Law decides to suspend an investigation, it shall oversee the fulfillment of the commitments(履行承诺)made by the undertakings. Where the undertakings fulfill their commitments, the authority for enforcement of the Anti-Monopoly Law may decide to terminate the investigation.(3) In any of the following circumstances, the authority for enforcement of the Anti-Monopoly Law shall resume the investigation:(a) the undertakings concerned fail to fulfill their commitments;(b) material changes(重大变化) have taken place in respect of the facts on which the decision to suspend the investigation was based; or(c) the decision to suspend the investigation was based on incomplete or untrue(不真实的)information provided by the undertakings concerned.C-VII Legal LiabilitiesArticle 46(1) Where an undertaking, in violation of the provisions of this Law, concludes and implements a monopoly agreement, the authority for enforcement of the Anti-Monopoly Law shall instruct it to discontinue the violation(责令停止违法行为), confiscate its unlawful gains, and in addition impose on it a fine of not less than one percent but not more than 10 percent of its sales amount(销售额)inthe previous year; if the monopoly agreement has not been implemented, it may be fined not more than RMB 500,000 yuan.(2) If an undertaking, on its own initiative(主动), reports to the authority for enforcement of the Anti-Monopoly Law about the monopoly agreement reached, and provides important evidence, the said authority may, at its discretion(酌情), mitigate or exempt the undertaking from punishment. (3) Where a trade association, in violation of the provisions of this Law, has arranged the undertakings in the trade to reach a monopoly agreement, the authority for enforcement of the Anti-Monopoly Law may impose on it a fine of not more than 500,000 yuan; if the circumstances are serious, the administrative authority for the registration of public organizations(社会团体登记管理机关) may cancel the registration of the trade association in accordance with law.Article 47Where an undertaking, in violation of the provisions of this Law, abuses its dominant market position, the authority for enforcement of the Anti-Monopoly Law shall instruct it to discontinue such violation, confiscate its unlawful gains, and in addition impose(并处)on it a fine of not less than one percent but not more than 10 percent of its sales amount in the previous year.Article 48Where the undertakings, in violation of the provisions of this Law, implement concentration, the authority for enforcement of the Anti-Monopoly Law under the State Council shall instruct them to discontinue such concentration, within a specified time limit(限期) dispose of their shares or assets and transfer the business(转让营业), and adopt other necessary measures to return to the state prior to the concentration, and it may impose on them a fine of not more than 500,000 yuan.Article 49To determine the specific amount of fines(具体罚款数额) prescribed in Article 46, 47 and 48, the authority for enforcement of the Anti-Monopoly Law shall consider such factors as the nature, extent and duration(持续的时间) of the violations.Article 50Where the monopolistic conduct of an undertaking has caused losses to another person, it shall bear the relevant civil liability(承担民事责任) according to law.Article 51(1) Where an administrative organ or an organization authorized by laws or regulations to perform the function of administering public affairs abuses its administrative powers to eliminate or restrict competition, the organ at a higher level shall instruct it to rectify; the person directly in charge and other persons directly responsible shall be given disciplinary sanctions(处分)in accordance with law. The authority for enforcement of the Anti-Monopoly Law may submit a proposal(提出建议)to the relevant organ at a higher level for handling the matter according to law. (2) Where laws or regulations provide for otherwise(另有规定) in respect of administrative organs or organizations authorized by laws or regulations to perform the function of administering public affairs abusing their administrative powers to eliminate or restrict competition, such provisions shall prevail.Article 52。