奇虎诉腾讯滥用市场支配地位纠纷上诉案二审判决的评析

Comment on the 2^(nd) Instance Decision of Qihoo v. Tencent for Abuse of Market Dominance

自2008年《反垄断法》生效以来,"奇虎诉腾讯滥用市场支配地位一案"是最高人民法院依据《反垄断法》审理的第一起案件,该案的审理过程和判决结果都引发了理论界和实务界的广泛探讨。以二审判决书为主要分析对象,并结合《反垄断法》的规定和反垄断案件分析的一般思路,研究了最高人民法院对《反垄断法》具体条文的理解和适用的基本立场,为解决将来反垄断执法和私人诉讼中的一些原则性问题提供了参考。最高院在判决中对免费市场运用假定垄断者测试、确定相关地域市场等问题上有精彩论证,同时也留下了一些值得探讨的问题,例如,在市场份额对判定市场支配地位的作用、相关市场的界定是否属于反垄断案件的基本事实等重要问题上,法院存在模棱两可甚至自相矛盾的结论。

Since China’s Anti-Monopoly Law（AML） came into force in 2008, the lawsuit for abuse of market dominance by Qihoo against Tencent is the first case heard and decided by the Supreme People’s Court（SPC） under AML, of which the hearing and the judgment has been intensively discussed among scholars and practitioners. The text of the 2nd instance decision was analyzed by combining with the provisions of AML and the general analysis method of anti-monopoly cases. The SPC’s understanding and application of the specific provisions of AML was studied to provide an example for solving the principal issues in AML enforcement and private litigations in the future. The SPC made some excellent arguments in the decision, such as the application of hypothetical monopolist test in free market and the decision of relevant geographic market. Meanwhile, the SPC’s decision left some issues for discussion. For example, for the issue of the function of market share in ifnding market dominance and whether deciding relevant market is a basic fact in anti-monopoly cases, the SPC’s answers were vague, and even inconsistent.