数字经济动态性特征对现行反垄断规则的挑战

The Challenge to Present Antitrust Rules by Dynamic Characteristics of the Digital Economy

现行反垄断规则以完全竞争模型为基础,完全竞争模型是一般均衡理论在竞争机制上的表达,具有静态特征。这一规则体系对创新强度不大的传统工业经济是基本适用的,但在规制数字经济时,却遭遇到重大挑战。数字经济是创新型经济,是动态经济。数字经济的动态性使现行反垄断规则,如界定相关市场规则、判断市场支配地位规则、判断滥用行为规则、并购控制审查规则、救济措施规则等,在具体适用时都遇到一定的问题。适应数字经济的动态性特点,反垄断目标应由侧重静态效率调整为更加重视动态效率,并在相关规则上作出相应改变。

The digital economy with information at its core is developing at a very rapid speed. It not only strides beyond the boundary of the old economy and creates new industries, but influences the traditional industries such as business, finance, tourism, transportation, entertainment and manufacturing. Compared with the traditional industrial economy, the digital economy is an innovative one. Therefore, the dynamic nature brought about by technological innovation and business model innovation is the striking feature of the digital economy. It is appropriate for current antitrust rules based on the equilibrium theory to regulate the traditional industrial economy, but rather limited to regulate the dynamic digital economy. The dilemma confronting the current antitrust rules is obvious in the settlement of cases involving Microsoft, Google, and 3Q(Qihoo 360 Company V. Tencent Company). This article will analyze in detail the basis of the current antitrust rules and their application to the digital economy. It will be shown that antitrust regulators face a difficult environment and that some innovative approaches would be more effective.