Business in China
中国商事
Busting trust
崩塌的垄断
Jul 17th 2008 | SHANGHAI
From The Economist print edition
The land of the mega-monopoly is about to adopt an antitrust law
大垄断者的地盘上要实行反垄断法
IT TOOK more time than the Long March and the Great Leap Forward combined, but after 14 years of wrangling China will introduce a comprehensive antitrust law on August 1st. It could prove to be hugely important: it has been called China’s “economic constitution”. The law would give China’s economy a further big push from central planning and state ownership towards markets, says Lester Ross of the Beijing office of WilmerHale, a law firm.
14年的争执不下，8月1日，中国将实行一个全面的反垄断法，虽然酝酿时间超过长征和大跃进总和，却意义非常：它被称成为中国的”经济宪法”。WilmerHale律师事务所驻京办事处的Lester Ross说，此法将大力推进中国由国有计划到市场经济的转型。
On the face of it, the law is desperately needed: energy, telecoms, transport, steel and many other industries lack competition, with a handful of dominant firms controlling prices not only for consumers, but for other companies too. Even fragmented industries, such as rice flour and instant noodles, where competition ought to abound, were recently reported to have seen price-fixing and collusion organised through the trade groups that are a legacy of the state-controlled economy.
乍一看来，实行此法刻不容缓：能源，电信，运输，钢铁和许多其他产业缺乏竞争，价格掌握在少数大公司手中，消费者和其他公司只能听之任之。米面和方便面这类的无领导者产业（Fragmented Industry），本应竞争激烈，前阵子却也有行业协会互相勾结，私自定价的报道。行业协会是国有计划经济遗留下来的产物。
At the moment competition is governed by a set of regulations from 2006, along with three other laws-the Anti-Unfair Competition Law, the Price Law and the Consumer Rights and Interests Protection Law. These various rules are scattered throughout China’s bureaucracy, and are universally condemned as toothless and lacking clarity. The new competition law reflects a belief by many in the Chinese government that the economic restructuring that began with the death of Mao can go forward only if consumers benefit from the lower prices and higher quality that competition produces.
如今的竞争由2006年来制定的一系列法规和其他三个法律管理，分别是：《反不正当竞争法》，《价格法》和《消费者权益保护法》。在中国，各个机构分管不同法规，人们普遍抱怨这一机制不透明，欠成效。竞争带来低价高质。自毛主席去世起，中国就启动了经济体制改革，但只有消费者享受到低价高质，才能推进改革。此法反映了中国政府内部许多人的这个观点。
Matched against this belief are more cynical and protectionist forces that have, alas, had a strong hand in shaping the new law. Many of the big Chinese monopolies are owned in part or whole by the state itself. One of the causes of the new law’s delay was the debate over whether these firms, which comprise a huge chunk of China’s economy, should be covered by it. After a series of drafts included and then excluded state-owned monopolies, a compromise was reached. The law applies to them, but with an exemption when economic or national security is threatened-a loophole almost as big as China itself.
愤世者和贸易保护主义者的观点与此相悖，却在新法制定中作用重大。中国现在的垄断集团，许多是完全或部分归政府所有，占中国经济很大比重，新法应否适用它们，一直争执不下，此为拖延出台的原因之一，正反观点的草案接连而出，最终达成妥协。新法适用于这类企业，若威胁经济或国家安全则另作考虑——这个空子怕是要赶上中国的大小了。
Worse is a suspicion that rather than going after the big monopolies, the law’s initial targets will be foreign companies. Taking a lead from the European Union, China will start reviewing mergers of companies, regardless of where they are based, so long as they operate within its borders or affect companies that do. Regulators will consider the effect on “the progress of technology” and “national economic development”. At the very least, this means large mergers must be blessed by the Chinese authorities, which will have a minimum of 30 days to assess them-and will be able to extend their review to 180 days. International law firms may be celebrating, but other companies must be lamenting that they will now face frictional costs to mergers in Beijing, as well as in Brussels and Washington, DC.
更糟糕的是，还有推测外企将首当其冲，而非大垄断者。紧随欧盟，中国将开始审查公司合并。无论哪国公司，只要在中国境内经营，或者对在中国境内经营的公司有影响，兼并都将受到审查。审查者将考虑对”科技进步”和”国民经济发展”的影响。这意味着，大型并购不管是否愿意，反正（at the very least,注意与at least的区别）必须取得官方通行证（意译），官方的评估至少30天，也有可能180天。从事国际法业务的律师事务所（International law firms）欢心鼓舞了，其他的公司只能叫苦不迭，他们在中国，比利时和美国的合并，将面临摩擦性成本。
The law may also conflict with intellectual-property rights. Chinese manufacturers in many industries have long bridled at being forced to cut their own production costs to retain sales, even as they have to pay what seem like large royalties to patent holders (as in the production of DVD players, for example). In industries such as software and pharmaceuticals, where the market is dominated by just a few foreign companies, the law may also justify litigation based on a superficial definition of dominance. It then allows prosecution over royalty rates, or restrictions on licensing. It is not hard to see how the law could be used to legitimise expropriation.
这部法律同样和知识产权存在冲突。中国很多行业的制造商被迫降低成本以保持销量，他们对此长期不满，而同时，他们却要向版权所有人交纳貌似巨大的版权费（比如DVD播放器的生产）。软件和制药之类的产业，少数外企占有多数市场份额，新法还可能给以”垄断”为借口的诉讼提供通行证，从而造成版税和授权限制的起诉。法律如何会被利用来合法征用，不难一见。
Worryingly, with only weeks before the law comes into effect, it has not yet been announced who will oversee it. The delay is a product of the competition within China’s bureaucracy, as rival agencies compete for such a valuable prize. One theory is that the job will be divided between three agencies. The winners will not only gain power within the national bureaucracy, but will be able to disrupt lucrative local monopolies that are often controlled by regional politicians. The new law could, in short, influence not just how business is run, but also how it is locally regulated.
令人担忧的是，据新法生效只有短短几周，监管机构却尚未宣布。政府内部机关争相食此大餐，造成拖延。一种意见认为须由三个机构共担此工。胜者不仅能有官方内部权利，还可以制止地方垄断企业的暴利，这些企业往往由地方官员控制。言而简之，新法影响的不仅是企业运营方式，还有地方政府管理模式。
译者：mxrruler http://www.ecocn.org/forum/viewthread.php?tid=12722&extra=page%3D1
好！