Research On Competition Law Regulation Of Express Data Interconnection

The dispute between S.F.Express and Cai Niao,in 2017,exposed the chaos of express data interconnection.Based on the fight for the control of express data,Cai Niao and other Alibaba platforms companies implemented data disconnection and blocking actions against S.F.Express.Although the State Post Bureau quickly came forward and successfully resolved the dispute,the law enforcement stopped at the end of the fight.The competition law enforcement didn’t involve from the beginning to the end,and the punishment measures were completely absent.However,the disconnection and blocking of data play a more mandatory role,which damages the free and fair basis of data interconnection,ignores the negative impact on the market mechanism and consumer welfare,and fails to effectively deal with the fundamental and substantive problems hidden in the appearance of the "SF & Cai Niao" dispute.In contrast,the 3Q dispute in 2010 is the same as the "SF & Cai Niao" dispute.The behavior mode and function logic of the two are basically the same.The end of the incident is also a hasty ending without the intervention of the competition law enforcement agency.There are gaps in competition law enforcement and punitive measures.On the contrary,the issue of "Choose One from Two" does not end.Instead,it appears repeatedly in various kinds of cases,which means the competition law issue in the "SF & Cai Niao" dispute is likely to be repeated.Although express data interconnection involves the game between different market operators rather than the competition inside single market,it has a very close relationship with the competition in the market.Moreover,express data and consumer data are two facets of one thing.The disorder of express data interconnection,if it continues to grow and be ignored,will also be very detrimental to consumer welfare.Therefore,it is particularly important to further study and improve the competition law regulation of express data interconnection.After sorting out and analyzing the dispute between "SF & Cai Niao" dispute and 3Q dispute,it is easy to find that the deep problems of the rule missing,game disorder,regulation deficiency and punishment vacancy are hidden in the "SF & Cai Niao" dispute.Firstly,the interest binding negotiation leads to the alienation of the game between enterprises.In the negotiation of data interconnection,e-commerce platform enterprises bind themselves with consumers in the platform and other enterprises within the group.Through benefit integration and advantage transmission,game enterprises can obtain competitive advantages unrelated to their strength.There are serious imbalance of power between enterprises,which leads to the breaking of free and fair basis of data interconnection,and the game mechanism among enterprises alienation appears.Secondly,the lack of special rules is arbitrary and disordered for express data interconnection.Without specific regulation,the interconnection of express delivery data is completely decided by the enterprise’s will,and lacks basic restrictions and norms.The interconnection of express data also tends to be chaotic and disordered due to excessive freedom.The existing general laws and principles have not played an effective role.The formation process and results of the express data interconnection rules based on this are also deeply affected.Thirdly,“Yes or All No”and the abuse of the market advantage of the enterprise.In the "SF & Cai Niao" dispute,although the anti-monopoly law cannot be applied,due to the blocked certification of market dominance,Cai Niao and other Alibaba platform enterprises are still abusing their market advantages,and damage the market competition mechanism and consumer interests.This behavior also has the potential to develop into the abuse of market dominance,and it is urgent to include such behavior in the framework of competition law.Fourthly,the competition law enforcement and rigid measures are absent from the position of the continuous repetition of violations.The absence of rigid measures such as competition law enforcement and punishment means that law enforcement can only play a formal regulatory effect and only for cases,which is difficult to play a guiding and deterrence role in the type of cases.Similar cases will continue to appear,and will further intensify.So,such law enforcement is not conducive to the long-term solution of the problems.In essence,the problems reflected in the battle of "SF & Cai Niao" are due to the imbalance among the three factors: the freedom of operation,the game of enterprises and the welfare of consumers.The excessive freedom of operation leads to the disorder and distortion of the game between enterprises and the welfare of consumers.Therefore,it is necessary to strengthen the regulation of enterprises’ free operation behavior and the regulation of enterprise’s game behavior,so as to lead them to return to the balance state of mutual connection,mutual promotion and mutual restriction.The specific solutions are as follows: At first,new perspectives and methods should be introduced into the process of analysis and demonstration of competition law.As for the binding of interests between enterprises,all parties involved should be regarded as the object of competition law analysis,and analyzed and judged separately from the individual and the whole dimensions,and then appropriate regulations should be selected to regulate;as for the binding of consumers’ interests,the principle of platform neutrality should be implemented,so as to promote the platform enterprises to return to the auxiliary attributes of service and avoid replacing the choice and judgment of consumers.Secondly,we need to revitalize the effectiveness of the existing general legal provisions and effectively build and maintain the constraint framework of data interconnection,so that the freedom of operation is always standardized and measured.Of course,the development and improvement of the law is also very important.It is complementary to the existing law to improve and optimize the normative framework and make it always adapt to the needs of practice.Thirdly,taking the double illegality of behavior and result as the core judgment standard,we should stipulate the type of abuse of market advantage in the anti unfair competition law,and regard it as the existence of mutual complement with the abuse of market dominant position,so as to prevent the emergence of abuse of market dominant position,and stop the abuse of market advantage to obtain market advantage improperly.Finally,the competition law enforcement agencies should increase the frequency and strength of law enforcement participation,explore the establishment of multi department joint law enforcement mode;at the same time,they should also strengthen the application of rigid law enforcement measures such as punishment,shape the law enforcement mode of combining rigidity and softness,and avoid the weakness of legal deterrence caused by excessive flexibility.