Competition Regulations On Abuse Of Superior Bargaining Position

At the beginning of the new century,China's abuse of the superior bargaining position as a representative of retailers' oversupply of “slotting fees” has caused serious harm to the society and aroused the attention of the industry,academics and the government.With the rapid development of the new economy relying on the Internet,China's market environment and competition have undergone tremendous changes,but it has also brought many new problems.Internet companies have forced users to select and close data information.The act of abusing the superior bargaining position also poses a serious hazard to the market competition order.Although China's "Anti-Monopoly Law" was promulgated in 2007,the "Anti-Unfair Competition Law" was also revised and enacted in 2017.However,in the process of formulating these two laws,the legislation surrounding the superior bargaining position is fierce.The issue of controversy and institutional choices remains unresolved,and further research is urgently needed.The superior bargaining position is that in the market transaction,when one party depends on the other party,and the former has no reasonable and expectable possibility to turn,the latter can unilaterally determine the market position of the transaction.Usually,the superior bargaining position is not regulated.Only the damage that causes the market competition order,damages the relative interests of the transaction and detracts from the welfare of the consumer will be regulated by the law.However,there are theoretical disputes about the legal regulation of the abuse of the superior bargaining position,mainly from the three aspects of civil and commercial law,administrative law and economic law.However,the civil and commercial regulations are difficult to protect the social public interest of damage,and the administrative regulations will cause excessive intervention in the market.Therefore,it is recommended that it be regulated by economic law.In addition,different countries or regions have different institutional models for the legal regulation of abuse,and there are general provisions and specific provisions.The provisions of the competition law and the non-competition law stipulate that the inclusion of competition laws and regulations conforms to the concept of fair and free competition.The theoretical discussion on the abuse of superior bargaining position competition law system is mainly analyzed from dependence theory,competition law theory and bilateral market theory.First of all,the dependence theory is the basic theory of the superior bargaining position.The identification of dependence should analyze the possibility,rationality and expectation of replacing the transaction object.Secondly,the regulation of the abuse of the superior bargaining position from the perspective of competition law.Therefore,this abuse is analyzed from the theory of fair competition,the theory of equal competition and the theory of honest competition.Finally,the market's comparative advantage in the abuse of the market,the use of bilateral market theory to analyze the superior bargaining position,provides a clearer path to identify the illegality of the behavior.Germany,France,Japan,South Korea,etc.have adopted competition legislation to regulate the abuse of superior bargaining position.In particular,the abuse of superior bargaining position in emerging networks has attracted much attention and has caused many new problems,due to the virtuality and technicality of the network.Characteristics such as concealment and business overlap are not specific,difficult to identify,difficult to prove,and harmful to spread;due to dependence theory and bilateral market theory,and competition regulations caused by Tencent,rookie network and Meituan abuse superior bargaining position.The problem requires in-depth research and discussion.Regarding China's abuse of superior bargaining position,there is no relevant system to regulate it at the level of competition law.Therefore,it is particularly important to establish legislation to abuse the system of superior bargaining position.However,there is a big controversy over the construction of the legal system for regulating the abuse.The debate is mainly regulated by the Anti-Unfair Competition Law or incorporated into the Anti-Monopoly Law.I believe that to solve this problem,we need to analyze the nature of the act,the effect of law enforcement,and the shortcomings of the regulation of the Anti-Monopoly Law.Through systematic research,the regulation of the Anti-Unfair Competition Law is more reasonable and justified.Then,in order to effectively regulate the abuse of the superior bargaining position,the competition law system that should be constructed is mainly composed of the following parts: First of all,it is necessary to incorporate the superior bargaining position into the "Anti-Unfair Competition Law" regulation,and adopt the "generalization + enumeration" method to clarify the content;secondly,explicitly abuse the superior bargaining position as a standard for identifying unfair competition behaviors.It mainly analyzes the dependence and relativity,as well as the abuse and damage of behavior.Thirdly,the specific forms of liability corresponding to the abuse of superior bargaining position are mainly included,including civil liability and administrative responsibility.Finally,Reasonable distribution of the burden of proof of both parties,in accordance with the principle of fairness and the ability of both parties to the transaction,should appropriately reduce the burden of proof of the plaintiff.