我国规制电商平台滥用“相对优势地位”的困境

The Dilemma of Regulating the Abuse of “Relatively Dominative Position” on E-Commerce Platforms in China

我国《反不正当竞争法》的第三次修订再次引发了关于“相对优势地位”条款的讨论,电商平台作为该条款欲规制的重点对象,也受到较多关注。事实上,我国当前并不具备引入专门条款规制电商平台滥用“相对优势地位”行为的条件。立法上,不论是《反垄断法》、《反不正当竞争法》还是《电子商务法》,都难以与该条款合理融合;实践中,则存在成本高而收益小、规制必要性不足、条款本身概念不明晰的适用困境。对此,立法上,应以《电子商务法》第35条为基础进行针对性立法完善;实践中,要建立多元化的规制体系,改善竞争环境。

The third revision of China’s Anti Unfair Competition Law has once again sparked discussions on the “relatively dominative position” clause, and e-commerce platforms, as the key object of regulation in this clause, have also received more attention. In fact, China currently does not have the conditions to introduce specialized clauses to regulate the abuse of “relatively dominative position” by e-commerce platforms. In terms of legislation, whether it is the Anti Monopoly Law, the Anti Unfair Competition Law, or the E-Commerce Law, it is difficult to reasonably integrate with this provision. In practice, there are difficulties in the application of high costs but low benefits, insufficient regulatory necessity, and unclear concepts of the terms themselves. In terms of legislation, targeted legislative improvements should be made based on Article 35 of the Electronic Commerce Law. In practice, it is necessary to establish a diversified regulatory system and improve the competitive environment.