Legal Regulation On The Behavior Of Data-driven Enterprises Abusing Dominant Market Position

With the vigorous development of the digital economy,data-driven enterprises use big data to occupy an advantageous position in the digital market competition.The operating model and profit model of data-driven enterprises are very different from the traditional real economy.The characteristics of network externalities,scale,and the existence of bilateral markets and free markets have made data-driven enterprises and traditional enterprises have huge differences in antitrust regulations.This article starts from the basic theory of legal regulation of data-driven enterprises that abuse market dominance.First,it defines big data and data-driven enterprises,and affirms the impact of big data on market competition;Analyzed the competition law attributes of data-driven enterprises in terms of network effect,data island effect,and diminishing fixed costs;Through the analysis of the regulatory models and constituent elements of data-driven enterprises that abuse market dominance,it is pointed out that the anti-monopoly regulation of data-driven enterprises cannot jump beyond the current anti-monopoly framework,and should continue to adopt a combination of behavior control and consequence control.mode.Secondly,the article analyzes three issues related to market,dominant position,and abuse in the abuse of market-driven position of data-driven enterprises.In the definition of relevant markets,the necessity of the definition of relevant markets and the failure of traditional testing methods were discussed.With reference to the analysis of relevant markets in the field of big data by the OECD moderate weakening of relevant markets and comprehensive applications such as SSNDQ and SSNIC New relevant market testing methods.Regarding the determination of market dominance,starting from the barriers to entry in the digital market and the characteristics of dynamic competition,combined with the newly revised antitrust law in Germany and the analysis of the CERRE analysis of the determination of the dominance of data-driven enterprises,it is proposed to establish a data performance evaluation mechanism and weaken Recommendations for market share.On the issue of abuse of market dominance,it is first pointed out that the current data-driven enterprises' abuse of market dominance is more complex and diverse than traditional enterprises,and has a very strong concealment.Starting with three typical behaviors,it analyzes the special manifestations of data-driven enterprises' abuse of market dominance,combined with related cases outside the domain,and puts forward regulatory suggestions for the three behaviors.Finally,the article combs the anti-monopoly law's legal responsibility and responsibility implementation mechanism,through the analysis of anti-monopoly law's civil liability,administrative liability and criminal liability.In terms of civil liability,it is recommended to introduce a punitive compensation mechanism to encourage consumers and market competitors to actively protect their rights and make up for the lack of administrative liability;In terms of administrative responsibility,it is recommended to strengthen the deterrent effect of administrative responsibility by imposing fines and confiscation of illegal gains on data-driven enterprises that illegally commit abuses,increase the illegal cost of enterprises,and maintain market competition.With regard to criminal liability,the article points out that it is not appropriate to introduce criminal liability for sanctions for the abuse of market dominance in data-driven enterprises.There are two reasons for this.First,from the perspective of promoting the development of emerging markets,the current law on data-driven enterprises Liability regulations are too strict for the development of the digital market.Second,in terms of law enforcement costs,the cost of law enforcement for data-driven enterprises is relatively high.The introduction of criminal liability will further increase law enforcement costs,which is not in line with China's current national conditions.In the analysis of the investigation mechanism,the article points out two problems: the difficulty of grasping the timing of the intervention of the administrative organs in the current administrative law enforcement and the difficulty of the victims to prove evidence in civil litigation.