平台经营者管理权的滥用与规范进路

Abuse of the Management Rights of Platform Operators and the Approaches of Regulation

数字时代平台经营者的角色定位已然由市场工具人向组织化的管理者转变,具有自律管理的法定职能。然而,平台经营者营利主体与管理主体的身份复合造成其在缔约与履约的过程中暗藏难以被有效识别且规制有限的权利滥用。主要原因在于:平台经营者的私主体面相与行为公共性的冲突、管理规则的私法自治与缔约商谈环境缺失的冲突和管理行为受原则性规范引导与包容审慎监管。为维护良善的平台商业生态,平台经营者应肩负起角色责任,根据《中华人民共和国公司法》第十九、二十条的规定,细化企业社会责任。在程序层面上,构造平台服务的选择渠道,强化平台用户话语权。在实体层面上,管理行为需要接受司法审查,行权措施应当符合禁止权利滥用规范。

In the digital era,the role of platform operators has changed from market tool people to organized managers,with the statutory function of self-discipline management.However,the overlap between the identities of the profit-making entity and the management entity of the platform operator has led to the abuse of rights that are difficult to be effectively identified and have limited regulation in the process of contract conclusion and performance.The main reasons are:the conflict between the appearance of the private subject and the public nature of the behavior of the platform operator,the conflict between the autonomy of private law of the management rules and the lack of an environment for contracting and negotiation,and the fact that the management behavior is guided by principled norms and inclusive and prudential supervision.In order to maintain a sound platform business ecosystem,platform operators should shoulder their role responsibilities and refine their corporate social responsibilities in accordance with articles 19 and 20 of the Company Law of the People’s Republic of China.At the program level,the selection channel of platform services should be constructed to strengthen the voice of platform users.At the substantive level,management acts are subject to judicial review,and measures to exercise power should comply with norms prohibiting abuse of rights.