Legal Analysis On Abuse Of Dominant Position In The Field Of Internet

Since the battle between QQ and Qihoo360broke out in2010, there are consistent conflicts between Tencent and Qihoo360,who filed lawsuits against each other.Among them,in November2011, Qihoo360brought a lawsuit to The High People’s Court of Guangdong Province (hereinafter,referred to as "GDHC") for Tencent’s abuse of dominant position in market,which push the dispute to the new high. In2013, DGHC made the Judgment of first instance and it refused all the claims of the plaintiff,so Tencent won the case.The first trial of GDHC has been caused wide discussion in academia and practical circle on antimonopoly issues in the field of Internet.Avail myself of this opportunity,this paper is started with the general theories of anti-monopoly,then to make new considerations to these general theories by combining the particularity of the Internet.Next step is to have a further study of the reasons and points of the Judgment of GDHC and a analysis on the dispute focus in this case by applying the new considerations. Finally,in-depth probing some of the general theoretical points in order to be able to solve the problems of anti-monopoly in the field of Internet in law enforcement and application in the future.The full text is divided into four parts,the specific contents are as follows:The first part is the case and dispute focus:Simple introduce disputes between Qihoo360and Tencent;An overview of the Judgment of the first instance of GDHC;Conclude some important dispute focus and theoretical points.The second part is the relevant market theory in the field of Internet:(1) Overview of the relevant market definition method,mainly includes the SSNIP,alternative analysis method and transport date method.(2)The particularities in the field of Internet are first discussed, including the bilateral market characteristic and free business model,the network effect and lock-in effect,dynamic competition,virtual characteristic of product,then analyzing impacts of above particularities to the relevant market definition.(3)Analyzing the dispute focus of the relevant market in this case, it is concluded that in this case,the relevant commodity market is instant messaging market (including integrated, cross-platform and cross-network instant messaging service) as well as social networking sites, microblogging service,and the relevant geographic market is mainland market in China.(4) Propose suggestions that reduce the importance of the relevant market definition, pay attention to the performance of the products and customers experience in the alternative analysis method, and pay attention to the relevant geographic market definition.The third part is the determination of the dominant market position in the field of the Internet:(1) Outline standards of the determination of the dominant market position in the field of the Internet, including the market structure standard and market behavior standard.(2) By applying the market structure standard and market behavior standard to analyse whether in this case Tencent has the dominant market position,finally come to a definite conclusion that Tencent has.(3) Propose suggestions that reduce the important role of the market share in the determination of the dominant market position, and pay attention to the application of market behavior standard in the process of dominant market position determination.The fourth part is the identification of abuse of dominant market position in the field of Internet:(1) This paper expounds the meanings of the dominant market position and its principles, including the self illegal principle and reasonable principle.(2)To have an in-depth analysis of whether Tencent existence of abuse behaviors of dominant market position by according to the different market participants, it is concluded that Tencent "either-or" for users belongs to refusals to deal or limit to deal with the costomers as one type of abuse behavior of dominant market position;"incompatibility of product " belongs to excessive self-defense against360which should identify as a refusal to deal, but should be mitigated punishment or be exempted from punishment.When for Tencent bundled QQ software manager with instant message software(QQ), no matter for the users or360, do not constitute "tie-in sale" behavior.(4) Propose suggestions that in the field of Internet,we should pay more attention to the modesty in law enforcement on the identification of abuse of the dominant market position and pay attention to the legal principles in the law application.