| With the rapid development of Internet,artificial intelligence and big data in the past ten years,the digital economy represented by platform economy has also developed rapidly in China.The competitive nature of digital platform is different from that of traditional enterprises,which brings new challenges to the maintenance of market competition order.Some of the early digital platforms have achieved their initial accumulation ahead of their competitors,gaining technological,capital and data advantages over their competitors,and disrupting the market order in the platform economy is becoming increasingly common.With the platform “One or two”as the representative of the numerous anti-competitive behavior is in the ascendant,emerging one after another,and even has the potential to become increasingly active and even spread.For a long time,because of the complexity of the development of Internet industry,anti-monopoly law enforcement agencies can not grasp the law of its development,dare not launch law enforcement rashly.At the same time,influenced by the different law enforcement attitudes of the European Union and the United States towards Internet platforms,as well as the misreading of the principle of inclusive and prudent regulation,the anti-monopoly regulation leading to the abuse of the dominant market position of China’s internet platform has been in a state of absence.However,since the fourth quarter of 2020,the central government has repeatedly made clear that it will step up anti-monopoly work,and the anti-monopoly law enforcement agencies have also responded to this.While the recent centralized enforcement of the “Two choices”Act is commendable,it does not follow that the theoretical obstacles to the application of China’s anti-monopoly law to the “Two choices”Act have disappeared,the puzzledom that perplexes our country practice law enforcement for a long time has been solved.On the contrary,such intensive law enforcement has exposed the existing problems in the anti-monopoly regulation of the “Alternative”behavior of the platform,the investigation and punishment of “Choosing one or the other”behavior of Internet platform still faces many difficulties and needs to be clarified urgently.This paper is divided into five chapters.The first chapter introduces the origin of the word “Two choices”,it also points out that “Two choices”should be defined as limiting transaction in the anti-monopoly context and the current classification of“Two choices”in theory and practice.On this basis,it points out a series of difficulties and disputes that our country’s current law enforcement practice and theoretical circles are facing in anti-monopoly regulation of the “Two choices”behavior of the platform,it is divided into three questions: first,which model should be used to define the relevant market,and second,which model should be used to define the market share standard;Thirdly,how to carry out competition damage analysis for the “Two or one”behavior of the platform.The second chapter solves the first problem of this paper,that is,when defining the relevant market in the platform economic field,we should adopt the “Unified definition model”that regards the two-sided market as the same market,and the platform for the bilateral definition of the relevant market “Respectively defined model.”.The first and second sections of this chapter introduce the rationality of the two models respectively from the angles of theory and foreign law enforcement practice.The third section is based on the characteristics of platform economy,three factors should be taken into account when judging the relevant market definition model are put forward.The third chapter solves the second problem,that is,how to apply the market share standard of platform economy.The first section points out that in the field of platform economy,the role of market share has dual nature,that is,the applicability of market share has the possibility of weakening and strengthening.Based on this,in the second section of the market share of different countries to comb the applicable model,it is divided into “Negative presumption mode”,“Can be inferred mode”,“Should be inferred mode”and “Mixed mode”.The third section points out the factors that should be taken into account when choosing the applicable model of market share,that is,whether it is compatible with other determination criteria,relevant market competition and the guarantee of discretion in individual cases.The fourth chapter solves the third problem of this paper,that is,the dilemma of the analysis of the competition effect of the “Two choices”behavior of the platform.The first section of this chapter points out the anti-competitive effect of “One or the other”behavior of the platform,that is,the market blockade effect,increasing the cost of competitors and damaging the interests of consumers.The second section,on the basis of the legitimate reason of restricting the transaction behavior in the traditional economic field,and supplemented by the special consideration in the platform economic field,obtains the legitimate reason defense of “One or the other”behavior,that is,“Natural monopoly”defense,“Efficiency”defense,“Protection of hot fixed investment income defense.The third section points out the need to balance the interests between the anti-competitive effect and the just cause of the conduct when evaluating the competition damage of the “Alternative”conduct,need to consider the platform to implement the “Two alternative”behavior is essential,and comprehensive consideration of the platform,platform operators,consumers tripartite protection.Chapter V based on the above analysis,in the context of China’s “Anti-monopoly Law”for the three issues of the proposed regulation.Clearly when defining the relevant market in the platform economy,the two ends of the bilateral market should be considered as a whole in most cases,on the basis of a series of particularities of the platform economy compared with the traditional industry,at the same time,it is also pointed out that in the case of platform types and the strength of indirect network effects of platforms,the two ends of the bilateral market can be defined separately according to the characteristics of platforms,while in the area of platform economy,the market share standard is applicable,given the need to take into account other identification criteria,to take full account of competition in the relevant market and to leave room for discretion in individual cases,therefore,China’s “Anti-monopoly law”needs to complete the transformation from the “Presumable mode”to the “Mixed mode”;The possible positive effects of the platform should be taken into account to clarify the legitimate reasons for the “Either-or”behavior,the article 17 of the anti-monopoly Law of the People’s Republic of China defines the justifiable reason of the transaction,and optimizes the related provisions of the justifiable reason in Article 15 of the guide. |
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