“腾讯QQ”与“360”之争的反垄断法分析

Anti-monopoly Law Analysis on the Dispute between Tencent QQ and 360

"腾讯QQ"和"360"之争已广受国人关注,"腾讯QQ"的强制卸载行为更是将此风波推向极致。深层次分析"腾讯QQ"之行为,网络型产品自身的外部性特点使其具备市场支配地位的条件,数字的不可携带性是其滥用支配地位的根源,其强制绑架消费者利益,远超出了自力救济的范畴,违背了《反垄断法》的基本价值取向,严重破坏了正常的市场竞争秩序,这足以认定其实质上滥用了市场支配地位。针对"腾讯QQ"等新兴的网络型产业,适用《反垄断法》予以规制时面临相关市场理论缺失、滥用市场支配地位行为种类受限、市场份额并非界定市场支配地位的唯一标准等难题。因此,应完善相关反垄断法律制度,进一步明确网络型产业市场支配地位的特殊界定标准,进一步细化滥用市场支配地位的行为种类,引入网络强制接入机制,以保护消费者的利益,实现反垄断法保护竞争的基本价值取向。

The dispute between Tencent QQ and 360 attracted the attention of people nationwide and the compulsory uninstall by Tencent QQ made it a fierce public event. It can be seen that, after deep analysis of the behavior of Teneent QQ, the externality of net product makes it easy to achieve dominant market position and the lack of portability is the basis of its abuse of dominant market position. The compulsory kidnapping of the interest of consumers, which went far beyond the scope of self relief, violated the basic value of anti-monopoly law and seriously damaged the normal market competition. These are sufficient to conclude that it abused dominant market position materially. Applying anti-monopoly Law to new net industries such as Tencent QQ, we face quite a few problems such as the absence of market theory, limitation of categories of dominant market position abuses and the market share which is not the only standard in the judgment of dominant market position. So, in order to protect consumers＂ rights and realize the basic value of anti-monopoly law, the protection of com- pletion, we shall improve relevant anti-monopoly law system to further clarify the special standard of judgment of dominant market position of net industries, further classify the abuses of dominant market position and implement compulsory access of net.