The Anti-monopoly Law Regulation Of MFN Clauses In Internet Market

In recent years,with intense competition of the network economy and emerging monopoly problems,the concept of MFN clauses in the Internet market has become the focus in today's anti-monopoly law.The MFN clauses in the Internet market has dual effects.On the one hand,MFN clauses can be used to deal with market failures,enhance market competition and improve market efficiency.On the other hand,MFN clauses may be adopted to achieve conspiracy weaken competition and raise the entry barriers of market.Due to the dual effect of the MFN clauses,the anti-monopoly law system has many difficulties.This paper will discuss the principles of illegality identification,the consideration factors and responsibilities of MFN clauses in the Internet market,and propose suggestions to improve the anti-monopoly law regulation of MFN clauses.The general idea of this paper are as follows,the first,find out the characteristics of MFN clauses by analyzing the subject,object and forms of MFN clauses,clarify the nature of the Internet market MFN clauses,solve the question that what is the MFN clauses in the Internet market;the second,analyze the necessity and feasibility of the antitrust regulation of the MFN clause,so as to solve the problem that why the MFN clauses should be regulated by anti-monopoly law;the third,discuss the principles that should be applied in the antitrust regulation of MFN clauses,the factors that should be taken into consideration in the determination of illegality and the establishment of liability,solve the problem that how to regulate the MFN clauses through anti-monopoly law;the fourth,based on the analysis of the regulatory path,the specific suggestions are proposed to improve the anti-monopoly law regulation of Internet market MFN clauses.In addition to the introduction and conclusion,this paper includes the following four parts:The first part is the basic explanation of the MFN clauses in the Internet market.Starting from analyzing the general definition of the MFN clause in international law,to extend the basic meaning of the MFN clauses in the context of antitrust law.By analyzing the subject,object and form of MFN clauses,to raise the idea that the MFN clauses are the agreements between the upstream and downstream enterprises to limit the price or preferential conditions.To clarify that the nature of the MFN clauses in the Internet field is a vertical monopolyagreement with double competition effects.The second part is the discussion on the necessity and feasibility of the antitrust regulation of the Internet MFN clauses.As the MFN clauses raise serious monopoly problems of the Internet market and the attention of the international antitrust enforcement agencies,the regulation of the MFN clauses is necessary.Meanwhile,national anti-monopoly law has multiple value objectives,legal and economic analysis tools,with the current foreign enforcement experience,it could make the antitrust regulation of MFN clauses feasible.The third part examines the path of antitrust regulation from three aspects: the regulation principle,the consideration factors of the illegal identification and responsibility setting.First of all,we should adopt the rule of illegal presumption,to presume the agreement consist of MFN clauses is illegal,then give the operator the right to defense;Secondly,when identify the MFN clause is illegal,we should considering the items as the influence of the MFN clause on the behavior of the operators,the subjective purpose of the operator,the market strength and the actual effect of the market competition;Finally,for responsibility setting,it should be refined to calculate the penalty base,to ensure the right of action of consumers and other competitors,and set criminal responsibility carefully.The fourth part proposes specific suggestions to improve the antitrust regulation of MFN clauses in the Internet market.At the legislative level,formulate the law enforcement regulatory document with principles and factors of the regulation of MFN clauses;at the enforcement level,pay attention to the application of the commitment system;at the judicial level,improve the private litigation system,distribution the burden of proof and punitive damages.