Research On The Anti-unfair Competition Regulation Of Abuse Of Superior Bargaining Position

In the "Supervision and Administration of Network Transactions(Draft for Public Comments)",the regulation of "abuse of dominant position" was proposed again for the issue of "two choices",but this expression was deleted in the official "Measures",and the relevant behavior was referred to the "Electronic Commerce Law" instead.Article 35 of the E-commerce Law.This paper will take the unfair competition in the Internet field as an example,and study the legitimacy and necessity of regulating the abuse of dominant position,the regulatory path and the system design in the context of the existing competition law system in China.The whole paper is divided into three chapters.The first chapter firstly introduces the concept of relative advantageous position,including its theoretical origin and specific concepts.After analyzing the abuse of comparative advantage and the abuse of market dominance,the following conclusions are drawn: although they belong to the scope of competition law,there are differences in the types of counterparties and the consequences of damage,so they should not be confused with each other.At present,the more prominent types of abuse of relative dominance by Internet platforms include "second-choice" Internet platforms and blocking links to other Internet services,which have caused serious harm to the fair competition and legitimate rights and interests of consumers in the Internet field.However,there is still a great controversy in the academic circles about whether to introduce this theory,including the theory of "no need for public intervention to regulate" and the theory of "anti-monopoly law to regulate".The author is of the opinion that the abuse of comparative advantage is frequent and manifests itself in various forms,so the introduction of this theory is justified and necessary.The second chapter follows the first chapter in exploring the justification and necessity of regulation,and starts the research on the path of regulating the abuse of comparative advantage in China.By analyzing the specific regulations and background reasons of the countries adopting the two models,as well as the inherent relationship of China’s competition law system,it is believed that incorporating them into the Anti-Unfair Competition Law is more in line with the legislative model and legislative purpose of China’s competition law,and is also more conducive to the application of the law,so that provisions regulating the abuse of comparative advantage should be added to the anti-law.The third chapter mainly proposes the setting of provisions for the legal regulation of the abuse of comparative advantage in China.First of all,we analyze the constitutive elements of the act from the doctrinal point of view,and adopt the "four elements" which is commonly said in the academic circles.When adding articles to the anti-law according to the constituent elements,the model of "general +enumeration" should be adopted.The concept of comparative advantage in the provisions should highlight the factors of "dependence" and "lack of sufficient possibility of switching to other operators" in the judgment criteria.In terms of coordination and application with existing legal provisions,the relationship and order of application between this new provision and Articles 2 and 12 of the Anti-Unfair Competition Law and Article 35 of the E-Commerce Law should be clarified.At the same time,in order to truly implement the protection of consumer rights and interests,a public interest litigation system should be introduced into the anti-law.