人工智能时代算法合谋反垄断的适法困境与逻辑依归

The Lawful Dilemma and Logical Dependence of Algorithmic Collusion in Antitrust in the Era of Artificial Intelligence

随着大数据人工智能的发展,算法合谋也以不可阻挡的趋势融入社会的各个领域,其所带来的问题也逐渐显现。传统的反垄断理念与新型合谋技术之间存在代际鸿沟,实践中反垄断的传统规制手段受到掣肘,算法合谋隐秘、智能的特点给反垄断的协议认定、规则适用等带来巨大困扰。传统的反垄断已无法迎接算法时代日新月异的新挑战,出现了责任定位困难、框架体系失衡、算法合谋协议概念局限等问题,需要以算法合谋的基本范畴为切入点对算法合谋进行解构,通过对协议概念的厘清、干预手段的建构、违法认定理念的实质转向和政府与市场的双重治理手段对算法合谋予以规制。

With the development of big data and artificial intelligence, algorithmic collusion has become an unstoppable trend in various fields of society today, and the problems brought about by algorithmic collusion are gradually becoming obvious.There is a generational gap between the traditional antitrust concept and the new collusion technology, and the traditional means of antitrust regulation are constrained in practice, and the secretive and intelligent characteristics of algorithmic collusion bring difficulties to antitrust in terms of agreement determination and rules application.The traditional antitrust law cannotdeal with the increasing challenges in the algorithmic era, and have emerged problems such as difficulties in locating liability, imbalance in the framework system, and limitations in the concept of algorithmic collusion agreement.Algorithmic collusion should be deconstructed from itsbasic categories, and be regulated through the clarification of the concept of agreements, the construction of intervention means, the substantive shift of the concept of illegality determination and the dual governance of governments and markets.