竞争法下的平台技术与数据自我优待行为研究

On Platform Technology and Data Self-preferential Treatment under Competition Law

自我优待可作广义和狭义两种理解,广义理解过于宽泛不具有学术讨论的意义,狭义理解则主要适用差别待遇的分析框架加以认定和处理,多表现为运用技术和数据手段实施。在构成要件上,自我优待类行为的分析需要注意的问题,在于主体关系特殊性、交易条件差异实质性和下游竞争影响必要性等三个方面的特殊性。在正当理由分析上,自我优待分析的特殊性主要体现于关联关系下对于“帮助”行为基准值的认定和把握。

Self-preferential treatment can be understood in both broad and narrow, broad understanding is too broad and does not have the significance for academic discussion, while narrow understanding mainly applies the analytical framework of differential treatment to identify and deal, it is mostly manifested in the use of technology and data means. In the constituent elements, the analysis of self-preferential behavior needs to pay attention to the problem is the particularity of the impact following three aspects of the necessity of downstream competition can have on the results of the analysis: particularity of the subject relationship, whether the particularity of the difference in trading conditions and the necessity of downstream competition affects. In the analysis of justifi cation, the particularity of self-preferential treatment analysis is mainly refl ected in the identifi cation and grasp of the benchmark value of "help" behavior under the correlation relationship.