| The Internet economy is changing the world's economic system and people's ways of life at a speed that is far beyond people's imagination.New products and services,new business forms,new marketing methods,new point-scoring and new monopoly pattern enable the scale of Internet enterprises can be in only ten years beyond the traditional economy that has a history of one hundred years.However while bringing huge benefits to people,it also has brought many new problems and difficulties to anti-monopoly law enforcement.anti-monopoly litigation in the field of Internet economy is becoming a major case that the judicial system must face.Although some complaints can be settled to a certain extent after the relevant administrative departments intervene,but it does not mean that the anti-monopoly in the Internet economy should be solved only through administrative regulation,rather than by judicial means applying the anti-monopoly law.The disadvantages of monopoly in the Internet economy need to be regulated by the anti-monopoly law.As many attributes of the Internet economy are still being formed which has not been fully revealed and frequent revision of the law is not realistic.Therefore,it is urgent to study the application of the anti-monopoly law in the Internet economy.This paper is based on the basic legal theory,the analysis framework and the fundamental law of market economy of the current anti-monopoly law,from the perspective of rational judge judicial practice and according to the Internet economy the particularity and complexity of anti-monopoly------applicable judicial principle and path of the anti-monopoly law-----the subject of application of anti-monopoly law-------Identify the basic elements of relevant market and dominant position----------identify the constitutive elements of illegal monopolization-------A logical chain of social effects of law enforcement and highlights the awareness of "problems",highlights some key issues,discusses the application of the anti-monopoly law in the field of Internet economy,and provides theoretical thinking,laws and policy recommendations on related issues.The following conclusions are drawn from the research.When applying the anti-monopoly law in the field of Internet economy:1.The competitive nature of monopoly should be carefully considered.The monopoly of Internet economy field belongs to competitive monopoly.The market position of monopolists and potential competitors may change rapidly due to technological innovation.Network externality,"winner-takes-all" and standardization of technical barriers are the main characteristics of Internet economy different from traditional economy,and also the fundamental reason that leads to the complication of monopoly in Internet economy.Current anti-monopoly law's legal spirit,basic principles and some basic methods can still apply to the Internet economy,but some specific rules,indicators,application,some antitrust proved to be effective in the field of traditional economic analysis tool and criterion,such as that of relevant market supply and demand substitution method,assuming monopolist test(SSNIP),decided that the illegal monopoly price or non-price abuses analysis,market share standard,etc.,changes shall be made according to the specific case.2.The trial principles and paths that should be adopted with priority.Because of the Internet economy anti-monopoly litigation plaintiff identity is diversiform,difficulty of proof,the court jurisdiction conflict,charitable nature,and the following principles in the judicial trial should be adopted with priority.First is the principle of willingness to respect the plaintiff: The plaintiff does not need the consent of the defendant to choose the market of the relevant product in the bilateral market.The court shall not substitute the market of different nature(different side users in the bilateral market),but can identify the market extension of the relevant product selected by the plaintiff within the limits of its own discretion.The second is the modest and restrained principle: Under the premise of more choices,when a judge exercises his discretionary power,he should use a method that can less infringe the rights of operators.That is,if he can apply the intellectual property law,the anti-unfair competition law,the price law,the criminal law and other laws,he should not apply the anti-monopoly law to the best of his abilities.Structural penalties,such as splits,should be avoided if other means of punishment are available.The third is principle of proportionality: In the Internet economy,competitive monopoly may increase the interests of more consumers while infringing the rights of minority operators,and may materially increase the future welfare of consumers while slightly violating their current rights and interests.Therefore,the application of the law must satisfy the necessity,appropriateness and balance in the punishment of monopolistic behavior of the concentration of operators and abuse of the dominant position.The fourth is Principle of encouraging innovation: The principle of encouraging innovation and encouraging Internet enterprises to make use of network effect,platform model and cross-border integration to enhance competitiveness through innovation in products,technologies and business forms will make the "cake" that can be distributed fairly bigger.At the same time,the application of anti-monopoly law should be changed from traditional emphasis on static data to more emphasis on dynamic development trend,from the focus on protecting fair competition to the focus on protecting consumer rights and interests.Due to the large amount of discretion left by the current anti-monopoly law in China,relevant judicial interpretation needs to create rules through judicial practice,and the anti-monopoly judicial trial mode should be dominated by rule creation mode and supplemented by dispute resolution mode.3.The scope of eligibility of the plaintiff should be expanded.The plaintiff in the civil action of anti-monopoly should be extended to those who are directly or indirectly harmed or threatened by the illegal monopolization,and it is not necessary to have a competitive relationship with the enforcer of the illegal monopolization.The profit should not be included in the standard of the propriety of the manager's antimonopoly lawsuit.Whether consumers' rights and interests are infringed,or will be infringed,is an important criterion for whether Internet economic operators have implemented illegal monopolization,giving consumers the qualification to comply with the legal spirit.Plaintiff qualification should be given to trade relative person in civil lawsuit.The consumer rights and interests protection committee,the trade association and the people's procuratorate shall be granted the qualification to bring an anti-monopoly civil lawsuit.4.The identification method of market dominance should be improved.When identifying the market of related products in bilateral markets,the plaintiff's claim and the court's supplementary trial rules should be adopted to solve the problem of how to choose related markets in judicial trials from the source,relationship between parties and courts should be clarified and the essence of bilateral markets should be restored.In the entire case process,the court shall not determine the "what" of the relevant products,but only the extension of the relevant products market.This is more conducive to the hearing of antitrust cases.In the relevant market identification alternatives to supply and demand,"demand cross elasticity = demand quantity of A/ function change of B " should be adopted to replace the traditional anti-monopoly law application of "demand cross elasticity = demand quantity of A / price change of B "."Replacement of supply = increase of technical supply/change of consumer quantity" is adopted to replace "replacement of supply = increase of supply/change of product price" applied by traditional anti-monopoly law.Such improvement is more suitable for the particularity of anti-monopoly in the field of Internet economy,and more operable in judicial judgment.5.The constitutive elements and punishment means of illegal monopoly should be improved.Because of the law of market incompatibility of technology and the role of information product standardization,competition and monopoly will be strengthened at the same time in network economy.Market share in the field of Internet economy is still the primary condition for determining the dominant position of operators in the market,but it is not sufficient condition,let alone the only condition.Compared with the traditional economy field,the Internet economy field anti-monopoly should reduce the importance of market share.The unfair pricing in Internet economy has its rationality and legality as long as it is not anti-competitive.However,monopolistic behaviors resulting from the suppression of technological innovation,the reduction of economic efficiency and the harm to the welfare of consumers belong to the abuse of dominant position in the market and must be regulated according to law.The anti-monopoly structural relief method is too harmful to enterprises,and the diversity of behavioral relief method can give consideration to regulating market competition order and promoting long-term economic development.Therefore,in anti-monopoly law enforcement,Internet enterprises,which are greatly affected by network effects,should take behavioral relief as the main method to avoid applying structural relief to the maximum extent.6.More attention should be paid to improving the legal and social effects.Administrative law enforcement and judicature should be adopted in the lawsuit of Internet economy.In the trial,more attention should be paid to the distribution of burden of proof and the reasonableness of the strength of evidence in order to reduce the litigant's legal burden.In the field of Internet economy,the legal principle is very important.It is also important to explain things clearly to all parties and stakeholders of the society,and to write legal documents that are both legal and reasonable.Anti-monopoly aims at promoting and protecting fair market competition and fair market competition aims at improving social welfare.The Internet economy cannot be brought up within the institutional framework of the traditional economy.Technical rationality,virtual trading,cross subsidy,viscosity,dynamic competition,competitive monopoly,externality,bilateral,infinite supply market,the speed economy,global interdependence,and so on,this kind of characteristic of in traditional economy,and many more will continue to emerge characteristics of network economy,which is an important symbol of economic development,social progress.Even though these factors are either not considered or comprehensively considered in the current anti-monopoly system framework there is still its inevitability.However,the foundation of the current anti-monopoly law is still solid.Under the circumstance that the legislation is reasonably lagging,the significance of studying the application of the current anti-monopoly law in the field of Internet economy is self-evident.The urgency is self-evident.More research is needed,and it goes without saying. |
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