“法”与“术”:数字经济平台市场支配地位之探微

Law and Method: Insights into the Market Dominance Determination of Platform in Digital Economy

数字经济平台以数据作为竞争基础,依托算法等技术扩展竞争优势,已成为一种新型法律关系主体。近年来大型数字经济平台涉嫌滥用市场支配地位的案件层出不穷,而市场支配地位的认定难点颇多。数字经济平台处于动态市场结构中,难以适用趋于静态考察的市场份额推定方法;同时,数据的竞争属性也在市场支配地位认定实践中被忽略。因此,需在遵循《反垄断法》这一"法"基础的前提下,结合数字经济特性调整市场支配地位认定方法。宜重点从市场进入壁垒与市场扩张壁垒角度进行精细化分析,审慎分析竞争相关数据获取及运用能力,此即数字经济平台市场支配地位认定之"术"。

The platform in digital economy which has become a new type of legal relationship subject uses data as the basis of competition and relies on algorithms and other technologies to extend its competitive advantage. In recent years, there have been many cases of alleged abuse of market dominance by large digital economy platforms, and there are many difficulties in determining market dominance. The fact that platform in digital economy is in a dynamic market structure makes it difficult to apply the presumption of market share, which tends to be a static examination, and the competitive nature of data has also been overlooked in the practice of determining market dominance. Therefore, under the premise of the Anti-monopoly Law, it is necessary to adjust the method of determining market dominance in the light of the characteristics of the digital economy. It is advisable to focus on the refined analysis from the perspective of market entry barriers and market expansion barriers, and carefully analyze the ability to obtain and use competition-related data, which is the method of determining the market dominance of the digital economy platform.