平台经济转售价格维持反垄断原则的适用

The Anti-monopoly Principles of Resale Price Maintenance under Platform Economy

数字经济独特的发展规律要求建立更为有效的反垄断实施体制,确保反垄断法的高质量实施。转售价格维持协议的本身违法原则和合理原则是互补的关系,都服务于反垄断法高质量实施的目标。在平台经济中,转售价格维持能克服渠道"搭便车"和实现网络效应等效应,但其也会便利寡头企业合谋、实施市场封锁和剥削性定价,因此案件审查应基于平台经济特殊性适用合理原则。中国反垄断执法实践显示,对转售价格维持简单适用本身违法原则和缺乏科学的反垄断执法制度保障会严重影响执法质量,增加执法失误风险。中国纵向限制协议反垄断应坚持合理原则为主的基本走向,以合理原则构建为核心、强化保障反垄断法高质量实施的制度体系建设。

Digital economy requires the establishment of an effective antitrust enforcement system to guarantee the high-quality enforcement of Anti-monopoly Law.In recent years,the resale price maintenance(RPM)has been a focal point in the judicial practice of antitrust enforcement in China.However,the proper application of anti-monopoly principles towards resale price maintenance(RPM)has been in great controversy.Based on analyzing the development of per se rule and rule of reason,we investigate their core and point out that per se rule and rule of reason are complementary,and rule of reason is a system that embodies the economic fact,the economic theory,and the procedure guarantee.In platform economy,resale price maintenance(RPM)has three new features,which are conducting resale price maintenance(RPM)by algorithm,mainly conducted on online platforms with the characteristic of two-sided market,influencing multiple subjects and markets in terms of its economic impact.The efficiency effects of resale price maintenance(RPM)are mainly reflected by overcoming the problem of"free riding"in distribution,achieving network effects,proving high quality,stimulating creativity,etc.The anti-competitive effects of resale price maintenance(RPM)are mainly reflected by facilitating price collusion,market foreclosure,and exploitative pricing.Therefore,it is appropriate to apply rule of reason in specific case review.In platform economy,the application of rule of reason in resale price maintenance(RPM)cases should focus on the analysis of its impact on non-price factors,strengthen algorithm investigation,and fully consider the unique features of platform economy,such as network effects,multihoming,etc.Despite the fact that the anti-monopoly authority conducts a prudent enforcement and some economic analysis,according to the Antimonopoly Law of China,the antimonopoly rule for resale price maintenance(RPM)cases is per se rule.The judicial practice of China antimonopoly enforcement demonstrates that multiple reasons can affect enforcement quality and increase the risk of enforcement fault,and that is the simple application of per se rule,the followup enforcement of local anti-monopoly authorities,the different principles applied between admiration and judicial authorities,and the inconsistency of punishment standards.It is necessary to stick to rule of reason as the basic principle for vertical restraints and construct the system by strengthening the core of rule of reason to guarantee the high-quality enforcement of Antimonopoly Law.