What is the recognition of horizontal competition in company law?

1. What is the recognition of horizontal competition in the company law? 1. Article 19 of the Measures for the Administration of Listing of Initial Public Offerings stipulates that the issuer's business is independent. The issuer's business should be independent of the controlling shareholder, actual controller and other enterprises controlled by them, and there is no horizontal competition or obviously unfair related transactions with the controlling shareholder, actual controller and other enterprises controlled by them. 2. "Guidelines for the Governance of Listed Companies" Article 27 The business of a listed company shall be completely independent of the controlling shareholder. The controlling shareholder and its subordinate units shall not engage in the same or similar business as the listed company. Controlling shareholders should take effective measures to avoid horizontal competition. 3. Listing Rules of Shanghai Stock Exchange 7.2.9 The announcement of the acquisition and sale of assets by listed companies shall include but not be limited to the following contents: (11) If the acquired assets may cause horizontal competition with related parties, the way or other arrangements (including relevant agreements or commitments, etc.). ) be disclosed. 4. Article 61 of the Company Law of People's Republic of China (PRC) stipulates: "Directors and managers shall not be self-employed or serve. Engaged in the above business or activities, the income is owned by the company. " Second, the formation of horizontal competition is directly related to the fact that the formation of horizontal competition is not "integration and reorganization" in general. When the company was restructured, the promoters failed to invest all the relevant assets and businesses that constituted horizontal competition in the joint-stock company, which eventually led to the formation of a competitive relationship between the existing businesses of the joint-stock company and the controlling shareholders. In the case of large state-owned enterprises, multinational groups and private enterprises as the main sponsors, the problem of horizontal competition is more likely to occur. Third, the judgment of horizontal competition The judgment of horizontal competitors should be divided from the perspective of actual control. The first category includes the largest shareholder of the company, shareholders who have actual control over the company's financial and operating policies through agreements or articles of association, shareholders who can control the company's board of directors, and shareholders who can jointly control the company with other shareholders; The second category includes companies directly or indirectly controlled by the above shareholders, that is, parallel subsidiaries of companies to be listed. The judgment of the content of horizontal competition is not limited to the scope of business, but should follow the principle of "substance is more important than form" and judge from the nature of business, customers of business, substitutability of products or services, market differences and so on. , and should fully consider the objective impact on listed companies and their shareholders. For example, China Resources Supermarket under China Resources Group and Wanjia Department Store under Shenzhen Vanke are small supermarkets based in residential areas and comprehensive shopping malls. There is still a difference between market positioning and customer goals. Moreover, China Resources Group and Shenzhen Vanke have been developing in their respective retail industries, and it is difficult for anyone to merge. Therefore, Shenzhen Vanke said in the announcement: "Although China Resources Wanfang and Wanjia are both in the retail industry, they are quite different in terms of formats, business models and commodity types. China Resources will avoid conflicts with Wanjia in retail business on the principle of benefiting Vanke's long-term development and the interests of Vanke's minority shareholders, and will discuss the feasibility of various cooperation with Vanke on the development of retail business. " So we can't simply judge the horizontal competition, and we can't simply ask to avoid horizontal competition at any level. If it can be recognized by the regulatory authorities through explanation and explanation, it can avoid spending a lot of energy to solve the problem of horizontal competition. Four. The practice of solving the problem of horizontal competition shows that the best way to solve the problem of horizontal competition is to reorganize the business of listed companies reasonably and choose the appropriate controlling shareholders in the process of enterprise restructuring. 1. Avoid horizontal competition through business restructuring. Simply put, horizontal competition is the competition between the same business, but the same business must be the competition between specific parties. Therefore, the purpose of avoiding horizontal competition can be achieved by adjusting the business between specific parties. Specifically, we must first determine the business scope of production and operation of listed companies, and then invest all the assets of the controlling shareholders themselves and their subordinate operating institutions with the same business nature as listed companies in listed companies. If all the investment cannot be made, the controlling shareholders' meeting will transfer the assets with the same business nature as the listed company to other enterprises (usually enterprises unrelated to the listed company), so that there is no longer any competitive relationship between the controlling shareholders and the listed company. 2. By choosing appropriate controlling shareholders, different situations can be avoided in the process of restructuring enterprises competing in the same industry. Although the ownership of state-owned assets belongs to the state in essence, the controlling shareholder must be the state in the process of restructuring state-owned enterprises into joint-stock companies, but the actual holders of state-owned shares can be divided into state shares and state-owned legal person shares according to the nature of the holding units. The holding unit of state-owned shares is generally the superior, which can be the state-owned assets management department or the departments and institutions that have the right to contribute on behalf of the state. The equity of legal person shares is directly owned by state-owned enterprises that contribute to listed companies. In this case, due to the small scale of state-owned enterprises as controlling shareholders and fewer subordinate enterprises, the probability of horizontal competition between controlling shareholders and their affiliated enterprises and listed companies is relatively small, so it is easier to adjust. Therefore, the purpose of avoiding horizontal competition can be achieved by choosing different enterprise restructuring plans and determining different shareholding units. 3. The controlling shareholder promises to avoid or try to avoid horizontal competition. Whether there is horizontal competition among some businesses is not absolute. Even though the plan of avoiding horizontal competition as much as possible has been adopted in the process of business restructuring, there is still a great possibility of horizontal competition with the further development of the controlling shareholder's business in the future. Even if the controlling shareholder retains some business and assets, it is still difficult to avoid the phenomenon of horizontal competition. In practice, in order to prevent this phenomenon, make the listed company comply with the laws and regulations on horizontal competition and go public smoothly, the controlling shareholder usually issues a letter of commitment to achieve this goal. The commitment of the controlling shareholder mainly includes the following contents: (1) After the establishment of a listed company, it will give priority to promoting the business development of the listed company. (2) Limit the businesses that are competitive with listed companies to a certain scale. (3) Give listed companies priority in development when there are new development opportunities in business areas that may compete with listed companies. There are many ways to adjust the company's policies for the benefit of enterprises, but once the relevant laws are violated, the interests of enterprises will not be safeguarded and will not bring extremely adverse effects to related enterprises. Therefore, the choice of business competition is very important for enterprises.