Research On The Illegality Identification Rules Of Data Monopoly Behavior

With the further penetration of data into market activities,more and more attention has been paid to the monopolistic behaviors generated by data in academic field and practice field.The scale effect brought by data concentration drives the huge demand for data of various market entities.More and more enterprises adopt various information technology means to obtain more and more valuable data resources.The benign interaction between data and competition makes enterprises pay more attention to how to use their own data and obtain more abundant data to maintain the leading competitiveness,and even use data to limit competition and gain monopoly position.In view of this,the anti-monopoly law should give a certain institutional response to the data monopoly behavior.The illegality identification rule of data monopoly behavior is the most important key,which is also the institutional embodiment of realizing the triple value interest balance of data industry innovation and development,market fair competition order and consumer rights and interests.This paper attempts to take the rule of illegality identification of data monopoly behavior as the starting point,centering on the basic theory of data monopoly behavior and three kinds of the most important data monopoly behavior,analyzing that the anti-monopoly law should explore a way of governance of interest balance,and then put forward corresponding suggestions for the improvement of the rules of anti-monopoly law in China.This paper is divided into five parts in the structure(excluding the introduction and conclusion),focusing on exploring the theoretical basis of the illegality identification rules of data monopoly behavior and the determination paths of three typical data monopoly behaviors.The first part is an overview of the basic theory of data monopoly.On the basis of analyzing the concept and characteristics of data monopoly,this paper analyzes the double nature of positive externality and negative externality of data monopoly,and puts forward three kinds of most important data monopoly behaviors.This paper argues that the data monopoly behavior has three main characteristics: the concentration of monopoly,the universality of influence and the concealment of behavior.Data monopoly has the positive externality of improving efficiency and promoting innovation through the scale effect of data resources,but at the same time,it also has the potential of restricting and eliminating competition due to its scale effect.Compared with the traditional typical monopolistic behavior,data monopolistic behavior is not only derived from the former for their relevance,but also different from the former due to the particularity of its object and technical conditions.The second part is the discussion of the illegality of the data monopoly agreement.The difficulties in identifying illegality of data monopoly agreements mainly lie in three aspects: one is that implicit collusion is more covert and difficult to find and prove;the other is that the identification of the subject of the agreement becomes blurred with the development of algorithms and artificial intelligence technology;the third is that there is an interpretation dilemma in the identification of subjective elements.In view of this,this paper holds that the principle of imputation of data monopoly agreement should give consideration to the needs of industry incentives and technological innovation,and should be based on the principle of rationality and supplemented by Per se illegality principle.At the same time,the distinction should be identified according to the different effects of collusion algorithm on monopoly agreement.The third part mainly discusses the rules of identification of abuse of dominant market position in data field.There are three difficulties in the identification of abuse of market dominant position in data field: first,the problem of enterprise’s data disposal right is not clear;second,the lack of feasible identification criteria for market dominant position in data field;third,the criteria of an abuse behavior is controversial.To this,the following arguments in this paper should be correspondingly recognized: the enterprise should enjoy certain rights and interests in the data that add labor value,relevant market should be scientifically defined according to the data features and industry characteristics,the comprehensive criterion to determine the dominant market position should be formed on the base of data control ability,and the judgment of abuse behavior also needs to be classified and determined in terms of categorization.The fourth part focuses on the illegality identification of the concentration behavior of managers in the data field.As far as the current system of centralized declaration of business operators is concerned,it is difficult to identify the difficulties in the application of consolidated declaration,the locking effect of data enterprises,the dynamic nature of competitive market structure and the hard determination of consequences of competition damage.Accordingly,the recognition of illegality should enrich the standards for the consolidated declaration of business operators,distinguish the role of data in the concentrated business operators,and enhance the initiative of anti-monopoly law enforcement agencies in this issue.The fifth part is the institutional conception of the future regulation of data monopoly behavior by China’s anti-monopoly law.With the frequent occurrence of data monopoly behaviors,the anti-monopoly law will inevitably need to form a certain institutional response in the future.First of all,data monopoly should be included in the scope of adjustment of anti-monopoly law.Secondly,fair and reasonable data competition rules should be established.Finally,the flow sharing mechanism in the data domain should be optimized.