論保險業(yè)橫向壟斷協(xié)議之豁免
發(fā)布時間：2019-01-12 17:34
【摘要】：保險業(yè)是經(jīng)營風險的行業(yè),具有分散風險的功能,被譽為"社會穩(wěn)定器",在國民經(jīng)濟中占有十分重要的地位。保險業(yè)的核心功能定位是風險保障,如果保險價格過高,則會喪失風險保障的功能,如果保險價格過低,又往往會造成保險公司自身的破產(chǎn)從而引發(fā)整個行業(yè)的動蕩。費率是保險的價格,保險的價格主要由兩部分構成——法定部分和自行決定部分,法定部分即純風險保費,與保險公司的償付能力掛鉤,自行決定部分主要包括公司的預期利潤和運營成本,理想狀態(tài)下保險的價格應當是法定部分占大頭,自行決定部分占小頭,可實際生活中卻往往由于保險公司之間的惡性競爭,導致出現(xiàn)相反的情況。正因如此,構建保險業(yè)公平競爭秩序變得尤為重要。目前,在保險業(yè)構建公平競爭制度已經(jīng)成為世界范圍內(nèi)的一種共識,但是保險業(yè)存在著特殊性,保險費率的厘定需要運用到"大數(shù)法則"的方法,共同保險領域需要運用同一合同條款、同一費率,這些具有構成橫向壟斷協(xié)議的嫌疑,這種特殊性也就決定了保險業(yè)適用反壟斷法的特殊性,需要通過豁免制度來解決。公平競爭環(huán)境下,絕不可能是整個保險業(yè)豁免適用反壟斷法,何種行為可以被豁免成為本文討論重點。本文希望通過對保險業(yè)橫向壟斷協(xié)議是否應該豁免,以及何種行為可以被豁免的討論得出保險業(yè)對《反壟斷法》的適用準則,以有限行為豁免倒逼出保險業(yè)如何在《反壟斷法》的規(guī)制下良性運作。本文沿著從豁免理論到保險業(yè)反壟斷實踐、從域外保險業(yè)豁免制度經(jīng)驗總結到我國具體制度構建的路徑進行探討研究。就具體制度構建的路徑選擇,有如下建議:第一,制定《保險業(yè)反壟斷指南》,對保險業(yè)的壟斷行為以及可豁免行為提供明確的法律依據(jù);第二,根據(jù)有限行為豁免理論,通過比較分析確定推定豁免的范圍,給予某些信息交換行為和某些共同保險、共同再保險行為豁免的地位;第三,確定個案豁免的要件,具體包括效率增益、必不可少性、惠及消費者以及沒有排除競爭四個方面;第四,本文通過對保險業(yè)個案豁免申請、審查、批準和監(jiān)督四個環(huán)節(jié)的討論,以完善個案豁免的程序,通過程序正義推動實體正義的實現(xiàn);第五,保險業(yè)是受到嚴格監(jiān)管的行業(yè),保險業(yè)存在監(jiān)管有其必要性,我國建立了以償付能力為核心,包涵公司治理、市場行為監(jiān)管的"三支柱"體系,在保險業(yè)的經(jīng)營活動中,往往會同時出現(xiàn)監(jiān)管機構和反壟斷執(zhí)法機構的身影,那么在討論保險業(yè)反壟斷法豁免的過程中,就需要明確二者之間的關系,確定《反壟斷法》為保險經(jīng)營者市場行為最高的行為準則,構建二者之間的信息共享和協(xié)調(diào)機制,為保險業(yè)的發(fā)展創(chuàng)造有利的法律環(huán)境。
[Abstract]:Insurance industry is an industry with the function of dispersing risks. It is called "social stabilizer" and plays a very important role in the national economy. The core function of the insurance industry is risk protection. If the insurance price is too high, it will lose the function of risk protection. If the insurance price is too low, it will often lead to the bankruptcy of the insurance company itself and lead to the turbulence of the whole industry. The rate is the price of insurance. The price of insurance is mainly composed of two parts-the statutory part and the discretionary part. The legal part, that is, the pure risk premium, is linked to the solvency of the insurance company. The discretionary part mainly includes the expected profits and operating costs of the company. Ideally, the price of insurance should be the majority of the legal part and the part of the discretionary part small, but in real life it is often due to the vicious competition between the insurance companies. Lead to the opposite. For this reason, it is particularly important to build a fair competition order in the insurance industry. At present, it has become a worldwide consensus to build a fair competition system in the insurance industry. However, the insurance industry has its own particularity, and the determination of premium rates needs to be applied to the "law of large numbers" method. The common insurance field needs to use the same contract clause and the same rate, which are suspected to form the horizontal monopoly agreement. This particularity also determines the particularity of the application of the anti-monopoly law in the insurance industry, which needs to be solved by the exemption system. In the environment of fair competition, it is impossible for the whole insurance industry exemption to apply anti-monopoly law, and what kind of behavior can be exempted becomes the focus of this paper. This paper hopes to discuss whether the horizontal monopoly agreement of the insurance industry should be exempted, and what conduct can be exempted from it, so as to obtain the applicable criteria of the insurance industry to the Anti-Monopoly Law. The exemption of limited behavior forces the insurance industry to operate well under the regulation of the Anti-Monopoly Law. This paper discusses the ways from exemption theory to anti-monopoly practice of insurance industry and from the experience of extraterritorial insurance exemption system to the construction of China's specific system. On the path choice of specific system construction, there are the following suggestions: first, to formulate the "Insurance Anti-Monopoly Guide", to provide a clear legal basis for the monopoly behavior and exempt behavior of the insurance industry; Secondly, according to the theory of limited behavior immunity, the scope of presumption immunity is determined through comparative analysis, and some information exchange acts and some co-insurance, co-reinsurance behavior immunity status are given. Third, to determine the elements of exemption in individual cases, including efficiency gains, necessity, benefits to consumers and not excluding competition; Fourthly, this paper discusses the application, examination, approval and supervision of the exemption of insurance cases in order to perfect the procedure of exemption and promote the realization of substantive justice through procedural justice. Fifthly, the insurance industry is under strict supervision. It is necessary for the insurance industry to have supervision. China has established a "three-pillar" system with solvency as the core, including corporate governance and supervision of market behavior, in the business activities of the insurance industry. Regulators and anti-monopoly law enforcement agencies often appear at the same time. In the process of discussing the exemption of the insurance industry's anti-monopoly law, it is necessary to clarify the relationship between the two. To establish anti-monopoly law as the highest standard of conduct of insurance operators in the market, to construct the information sharing and coordination mechanism between them, and to create a favorable legal environment for the development of the insurance industry.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D922.294
本文編號：2408027
[Abstract]:Insurance industry is an industry with the function of dispersing risks. It is called "social stabilizer" and plays a very important role in the national economy. The core function of the insurance industry is risk protection. If the insurance price is too high, it will lose the function of risk protection. If the insurance price is too low, it will often lead to the bankruptcy of the insurance company itself and lead to the turbulence of the whole industry. The rate is the price of insurance. The price of insurance is mainly composed of two parts-the statutory part and the discretionary part. The legal part, that is, the pure risk premium, is linked to the solvency of the insurance company. The discretionary part mainly includes the expected profits and operating costs of the company. Ideally, the price of insurance should be the majority of the legal part and the part of the discretionary part small, but in real life it is often due to the vicious competition between the insurance companies. Lead to the opposite. For this reason, it is particularly important to build a fair competition order in the insurance industry. At present, it has become a worldwide consensus to build a fair competition system in the insurance industry. However, the insurance industry has its own particularity, and the determination of premium rates needs to be applied to the "law of large numbers" method. The common insurance field needs to use the same contract clause and the same rate, which are suspected to form the horizontal monopoly agreement. This particularity also determines the particularity of the application of the anti-monopoly law in the insurance industry, which needs to be solved by the exemption system. In the environment of fair competition, it is impossible for the whole insurance industry exemption to apply anti-monopoly law, and what kind of behavior can be exempted becomes the focus of this paper. This paper hopes to discuss whether the horizontal monopoly agreement of the insurance industry should be exempted, and what conduct can be exempted from it, so as to obtain the applicable criteria of the insurance industry to the Anti-Monopoly Law. The exemption of limited behavior forces the insurance industry to operate well under the regulation of the Anti-Monopoly Law. This paper discusses the ways from exemption theory to anti-monopoly practice of insurance industry and from the experience of extraterritorial insurance exemption system to the construction of China's specific system. On the path choice of specific system construction, there are the following suggestions: first, to formulate the "Insurance Anti-Monopoly Guide", to provide a clear legal basis for the monopoly behavior and exempt behavior of the insurance industry; Secondly, according to the theory of limited behavior immunity, the scope of presumption immunity is determined through comparative analysis, and some information exchange acts and some co-insurance, co-reinsurance behavior immunity status are given. Third, to determine the elements of exemption in individual cases, including efficiency gains, necessity, benefits to consumers and not excluding competition; Fourthly, this paper discusses the application, examination, approval and supervision of the exemption of insurance cases in order to perfect the procedure of exemption and promote the realization of substantive justice through procedural justice. Fifthly, the insurance industry is under strict supervision. It is necessary for the insurance industry to have supervision. China has established a "three-pillar" system with solvency as the core, including corporate governance and supervision of market behavior, in the business activities of the insurance industry. Regulators and anti-monopoly law enforcement agencies often appear at the same time. In the process of discussing the exemption of the insurance industry's anti-monopoly law, it is necessary to clarify the relationship between the two. To establish anti-monopoly law as the highest standard of conduct of insurance operators in the market, to construct the information sharing and coordination mechanism between them, and to create a favorable legal environment for the development of the insurance industry.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D922.294
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