China: 专业服务机构更应远离垄断行为

Last Updated: 2 March 2017
Article by Jet (Zhisong) Deng

就反垄断合规而言,本案涉案的会计师事务所应当吸取教训,重视遵守《反垄断法》。本案涉及的划分市场只是垄断协议的类型之一,会计师事务所也需要避免从事固定价格、限制服务量、联合抵制等其他垄断协议行为。另外,国家财政部门、注册会计师协会也应加强对会计师事务所的反垄断培训和考核,增强其诚信自律意识。

近日,国家工商总局公布了山东省工商局查处山东省临沂市25家会计师事务所达成并实施划分市场的垄断协议一案,本案是自我国《反垄断法》施行以来首次查处的涉及会计师事务所的垄断案件。

此案让人惊讶的是,本应对《反垄断法》比较熟悉的会计师事务所竟然知法犯法。在《反垄断法》施行后,我国注册会计师资格考试科目中的《经济法》就已将《反垄断法》纳入考试范围,加之执法机构这些年不断加大反垄断执法和宣传力度,会计师事务所对《反垄断法》不应陌生。当然,知法犯法的例子并非罕见,本案的查处表明相关行业的守法认识需要进一步提高,行业制度需要进一步完善。

本案中,多达25家会计师事务所组成临沂市注册会计师行业自律委员会,共同达成"统筹方案"等协议,要求所有会员单位每月将临沂本地相关业务收入交纳至专用银行账户,再按照各会员单位以往年度收入占全体收入的市场份额等指标,对各单位当年收入进行重新分配。这种安排明显排除、限制了会计师事务所之间的竞争,属于划分市场的横向垄断协议。在工商系统近年来查处的垄断案件中,这种以往年市场份额为基准来分配收入的做法已有先例,属于划分市场的一种典型模式。包括会计师事务所在内的市场主体应当明白,这种模式的行为很可能违反《反垄断法》,因而需要十分谨慎。

本案行政处罚决定书显示,对于组织者的罚款比例是其销售额的3%,对于参与者的罚款比例是2%,对于反对达成垄断协议但最后向多数人妥协的参与者的罚款比例是1%。这表明,执法机构对横向垄断协议的处罚本身是较为严厉的,但是涉案当事人配合调查、主动改正并停止违法行为符合从轻处罚的情节。考虑到本案中的垄断协议属于《反垄断法》严厉禁止的核心卡特尔行为,而这些罚款比例实际并不高,说明企业在面对反垄断调查时应当积极配合,尽量争取从轻处理。

根据《行政处罚法》,执法机构在作出较大数额罚款的行政处罚决定之前,应当告知当事人有要求举行听证的权利;当事人要求听证的,执法机构应当组织听证。本案中,当事人申请了听证,而这在此前反垄断案件中并不多见。在2014年国家工商总局公布的案件中,仅辽宁昌庆等水泥公司要求过听证。本案执法机构组织听证,有效保障了当事人的正当权益。

除了本案中的会计师事务所,现代社会中还有许多类似这样的专业服务主体,如涉及医生、律师、教师等职业的服务机构。这类服务机构准入门槛高,一般从业者需要获得专门的职业资格。除了分割市场外,这类主体如果在某一专业领域的执业活动中协商一致提高收费价格,达成服务收费标准的统一,也可能构成横向垄断行为。

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