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Financial industry antitrust enforcement in the United States

2019-07-09 来源: 51due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- Financial industry antitrust enforcement in the United States,供大家参考学习,这篇论文讨论了美国的金融业反垄断执法。美国的金融业涉及国民经济命脉。在美国,反垄断执法已成为刺激经济复苏、提高金融系统运行效率必不可少的工具。然而市场经济运行的经验表明,竞争并非在所有情况下都是确定价格和交易规则的最佳机制。在银行、保险和证券等金融行业,适度的反垄断豁免对防范系统风险、维护金融稳定具有积极作用。

Financial industry,美国金融业反垄断执法,assignment代写,paper代写,美国作业代写

The financial industry concerns the lifeblood of the national economy. In market economy countries such as Europe and America, anti-monopoly law enforcement has become an indispensable tool to stimulate economic recovery and improve the efficiency of financial system. However, the experience of market economy operation shows that competition is not the best mechanism to determine price and trading rules in all cases. In the banking, insurance, securities and other financial industries, it has become the consensus of western countries to recognize that moderate anti-monopoly exemption plays a positive role in preventing systemic risks and maintaining financial stability. The experience of the United States in coordinating the anti-monopoly and exemption of the financial industry is of great significance for China's financial anti-monopoly law enforcement in its infancy.

The anti-monopoly law enforcement of financial industry has been controversial in the early years of the anti-monopoly law in western countries. Throughout the history of anti-monopoly law enforcement in the financial industry, we can find the transformation from emphasizing industry regulation and excluding anti-monopoly law enforcement to relaxing regulation and introducing free competition. Take the banking industry as an example, the anti-trust law of many countries was not applicable to the banking industry at the very beginning. For example, the Sherman anti-trust law of the United States was enacted in 1890. However, it was not until the Philadelphia national bank case in 1963 that the federal Supreme Court recognized that the banking industry could apply the law. Previously, banking was not considered a business and antitrust laws did not apply. Congress also once considered excessive competition harmful to the banking industry, which has become a major cause of bank failure. Not just in the us, eu competition law did not really apply to the banking sector until 1981. At that time, the dominant view was that the banking industry was a special field whose operation was mainly influenced by the central Banks and regulators of member states' policies on financial stability and foreign exchange control, etc. The banking competition mainly existed in member states' domestic market and would not have an impact on the eu's unified big market. Therefore, the application of eu anti-monopoly law should be exempted. The same was true of the insurance industry, until the United States v. southeast insurance association in 1944, when the Supreme Court ruled that insurance could constitute interstate commerce and antitrust laws should apply. Nowadays, the application of anti-monopoly law in banking, insurance, securities and other financial industries has become a common practice in various countries, and China's anti-monopoly law does not grant Banks and other financial institutions exemption from the application of anti-monopoly law. The main reason to exclude anti-monopoly law enforcement in the financial industry is to maintain financial stability. However, academic research increasingly shows that, under the condition of complete regulatory framework and exemption system, anti-monopoly law enforcement will not affect financial stability, but can play a certain role in promoting it.

Anti-monopoly exemption means that a specific act can exclude the application of anti-monopoly law, which must be reasonable and necessary in practice. Immunities can be established either explicitly by legislation or by the principle that special law takes precedence over common law. There are two main reasons for seeking exemption. One is to avoid the possible reduction of operating efficiency of the whole industry caused by anti-monopoly law enforcement. The second is to seek legal protection for the restriction of competition behavior necessary for the operation of certain industries. The reasons for the financial industry's moderate exemption from the anti-monopoly law vary, but the basic starting point is to maintain financial stability and consumer interests by controlling risks and protecting small and medium-sized enterprises.

In terms of specific industries, first of all, the banking industry is a regulated industry, and the regulatory agencies may make or conduct behaviors approved by the regulatory agencies in accordance with laws, such as controlling market access, fixed interest rate and geographical operation restrictions, which may have an impact on market competition. If antitrust enforcement agencies challenge these practices, it will certainly shake the efficiency and authority of regulators, and may have a negative impact on the banking market. Therefore, in addition to the explicit provisions that anti-monopoly law enforcement agencies can supervise certain behaviors, regulators and Banks enjoy a DE facto exemption from these behaviors. The exemption here stems from a fundamental legal principle that special law takes precedence over common law. The ACTS implemented or approved by the regulators in accordance with the industry legislation shall be regarded as having priority over the general jurisdiction stipulated by the anti-monopoly law. In fact, the banking market is highly professional, and the focus of anti-monopoly law enforcement agencies is usually limited to current market competition, price and supply, while the banking regulatory agencies need to investigate issues far beyond this scope, including not only competition, but also market operation efficiency and long-term stable development. Therefore, when regulators can fulfill their duties under the premise of paying attention to market competition, and grant antitrust exemption to behaviors made or approved by regulators, the negative impact of antitrust enforcement on the long-term development of the industry can be effectively avoided and the long-term development of the banking market can be promoted.

Secondly, the insurance industry is characterized by risk allocation, which determines that risk assessment and control become the core elements of insurance operation. The collection and analysis of risk loss data are not only costly but also directly determine the price of insurance products. Many small and medium-sized insurance companies lack the human and economic resources to do this work, and the wrong data information may lead to the bankruptcy of the company due to the failure of pricing strategy when facing high-risk insurance. Therefore, legislation entrusts insurance companies with anti-monopoly exemption for collective cooperative behaviors such as joint development and data collection, which is conducive to expanding the living space of small and medium-sized insurance companies and promoting economic efficiency.

Finally, the securities industry is exempt on a similar basis to banking. The securities market and trading are extremely sensitive to information and inseparable from risks. In order to protect the interests of investors and promote the healthy and stable development of the securities market, the authorities granted by governments of various countries to securities regulators are generally greater than those of other industry regulators. Its regulatory targets are complex, including not only securities firms and investors, but also listed companies, fund houses and stock exchanges. Securities regulatory agencies are highly specialized, so granting them anti-monopoly exemption in accordance with laws is not only conducive to the healthy development of the securities market, but also in line with the interests of investors.

As the core of the financial system, the banking industry is crucial to maintaining financial stability and social stability. At present, banking regulators in many countries adopt the mode of dual or even multiple division of responsibilities. For example, the responsibilities of banking supervision in the United States are divided among three institutions, including the federal reserve, the office of banking supervision and the federal deposit insurance corporation. The fed's primary role is to ensure the stability of the banking system and monetary liquidity. The office of banking supervision, under the ministry of finance, is responsible for day-to-day supervision of national Banks to ensure compliance. The fdic insures deposits held by Banks against the risk of a run. In the antitrust enforcement practice of the us banking industry, the exemption problem can be solved by clarifying the authority of the regulator. The regulatory authorities shall be entitled to anti-monopoly exemption if they conduct ACTS in accordance with the provisions of the law or the enterprises engage in the examination and approval of the regulatory authorities. The specific scope of exemption shall depend on the authority enjoyed by the regulatory authorities in accordance with the provisions of the law.

Antitrust exemptions for the insurance industry usually appear in legislation. The exemption of the insurance industry in the United States is mainly stipulated in the McCarron ferguson act of 1945. Articles 2 and 3 of the act grant the insurance industry exemption from the application of the federal antitrust law. To obtain the exemption, the following three conditions must be met: first, the act must belong to the insurance business; Second, it must be within the jurisdiction of the state government; Third, it excludes boycotts, forced transactions and threats. As for the concept of insurance business, the Supreme Court in the royal pharmaceutical corporation case first gave specific judgment methods. Subsequently, it was further refined into three criteria in the pieno case: first, whether the act can transfer or disperse the risk of the insured; Second, whether the act is an indispensable part between the insurer and the insured; Third, whether this behavior is limited to the participation of internal enterprises in the insurance industry. In addition, the Supreme Court, through parker v. brown and united mine workers of America v. pennington, granted immunity from antitrust law by granting states the right to participate and respond to petitions to restrict competition. Antitrust exemptions in the securities industry, similar to those in banking, are usually unwritten. Each country may have an independent regulatory agency for the securities market, such as the securities and exchange commission of the United States, or a department under the general regulatory agency, such as the investment division under the financial services authority of the United Kingdom. In Gordon v. New York stock exchange, the Supreme Court held that the securities and exchange commission had the power to review fixed commission practices and that its approval could be waived. The latter three are not exempt. The reason is that regardless of dereliction of duty and illegal or without examination authority, means industry regulatory failure, at this time should be allowed to the anti-monopoly enforcement authority intervention to keep the securities market competition order, such as in the case of Jacob v. Bach, the court held that the securities and exchange commission without permission to review the service costs cannot be passed on to the rules of the brokerage, the behavior, therefore, cannot obtain antitrust exemption. In peterson v. Philadelphia, the court found that the defendants' boycott of the plaintiffs' trades could not be granted antitrust immunity because the securities and exchange commission had no power and lacked the experience to examine collusion. In silva v. New York stock exchange, the court held that because the securities and exchange commission did not have the power to review enforcement of certain rules, the defendant could not obtain antitrust immunity for cutting off telephone lines on the grounds that the plaintiff violated trading rules. In addition, cartel agreements between brokers can result in triple damages and jail time under antitrust laws. The securities and exchange commission is unable to provide either remedy. Therefore, in terms of the protection of the interests of the parties, anti-monopoly law enforcement agencies have certain advantages over industry regulators.

Antitrust enforcement can promote market competition and protect consumer interests, but it is not good at defining industry-specific trading rules. The introduction of exemptions after the complete or partial deregulation of certain industries such as finance and energy fully demonstrates the awareness of the comparative advantages of antitrust. This is further evidence that not all industries need to be completely deregulated and only adopt the anti-monopoly regulatory approach. In fact, exemptions in the form of industry regulation tend to promote cross-subsidies, protect the interests of the regulated, and help determine product prices and the rules of business dealings. The scope of exemption in the form of law is clear, simple and feasible, with high predictability. From the experience of anti-monopoly law enforcement in the American financial industry, the emphasis on the mutual assistance of anti-monopoly and exemption in special industries is conducive to giving full play to the advantages of the two, giving full play to the advantages and avoiding the disadvantages, and providing comprehensive guarantee for the financial system.

The experience of the financial industry from emphasizing regulation to competition and regulation simultaneously proves that competition can effectively improve the overall welfare of society by promoting efficiency and consumer welfare. With the gradual expansion of the scope of deregulation, anti-monopoly law enforcement agencies can protect competition in an increasingly wide range of fields. Even in areas where regulation has not been relaxed, antitrust enforcement agencies can still act as overseers and a last resort for industry regulators. Therefore, it is of great significance to strengthen the supervision responsibility of anti-monopoly law enforcement agencies on the decisions of industry regulators in order to maintain market competition in the financial industry, comprehensively protect the interests of all parties in the market and avoid the capture of regulators. At the same time, considering the professional advantages of the industry supervision, it is unrealistic to give the supervision authority to the anti-monopoly law enforcement agency. However, in order to avoid the abuse of power by the regulator in pursuit of special interests, the specific scope of the industry supervision should be detailed and the authority of the regulator should be limited to the framework. Only in this way can the negative impact be minimized under the premise of fully exerting the advantages of industry supervision.

The relationship between industry regulators and antitrust enforcement agencies is a game in all regulated industries. How to coordinate the relationship between them and promote the healthy development of regulated industries has become a problem that must be solved in practice. At present, China's financial regulatory institutions include CBRC, circ, CSRC and other specialized institutions. Although each agency has clear regulations on its own scope of supervision, but in practice, the case of exceeding the scope of authority is not uncommon. In addition, China's anti-monopoly law enforcement authority is divided into three departments, namely, the ministry of commerce, the national development and reform commission and the state administration for industry and commerce, and the cross-coordination among these departments is relatively complex, which leads to the fact that the anti-monopoly law enforcement work in the financial sector has come to a standstill. It has become an urgent problem to coordinate the relationship between financial industry regulators and anti-monopoly law enforcement agencies. The author thinks that the daily communication and consultation mechanism can be established by means of regular joint meetings, and each department will send special personnel to exchange information with other departments. Law enforcement guidelines will be issued jointly in specific areas such as finance to unify thinking and understanding, avoid differences in standards and standards, and weaken the authority and predictability of anti-monopoly law enforcement. In addition, if the conduct reviewed by industry regulators involves competition issues, the opinions of anti-monopoly law enforcement agencies should be solicited, and relevant market definitions should be obtained. When carrying out law enforcement work in specific industries, anti-monopoly law enforcement agencies shall also notify the industry regulatory agencies and obtain assistance in terms of professional knowledge and skills. Only in this way can we truly maximize the functions of industry regulation and anti-monopoly, fully protect the interests of all parties in the market, and jointly promote the long-term, healthy and stable development of the financial industry.

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