假定垄断者测试在竞争法中的应用研究

On the Application of the Hypothetical Monopolist Test in Competition Law

SSNIP测试也被称为"假定垄断者测试",是依据芝加哥学派的观点从市场势力的角度来界定反垄断市场的一种方法。在近年来,该测试方法在国内外被越来越广泛地施诸司法实践,然而,在法律经济学得令当道的大背景下,研究者的言说大多从经济学而非法学本身的角度立论,本文通过法律文本的分析解读SSNIP测试方法的源起,揭示该方法在美国和欧盟竞争法实践中的应用异同以及可能面临的困境,并以奇虎诉腾讯滥用市场支配地位案为典型案例,对中国司法实践在这方面涉足伊始的得失经验从学理上加以客观评论。本文的结论是,经济学的论证也难免利益之累,对于技术主义的取向应保持清醒的认识。

SSNIP test is also called “hypothetical monopolist test” ,which is based on the Chicago School view from the perspective of market forces to define an antitrust market. In recent years, the test method at home and abroad has been more and more widely applied to judicial practice. However, under the background of the economic imperialism in contemporary, the most of the arguments is provided by e-conomics rather than from the perspective of law itself. Through the interpreting of the legal text, the present article explores the origins of the SSNIP test methods, reveals similarities and differences of its ap-plication in the United States and EU competition law practice, as well as the difficulties which it is likely to face in reality, especially the objective comments from an academic perspective are made on the pros and cons of experience China’ s judicial practice in availing this test in Tencent v. Qihoo case. According to the present article, the argument of economics is often inevitably tired interests, then it is important and use-ful for us to keeping a cool head towards the technology-oriented doctrine.