论电商平台“二选一”行为的法律规制

On the Legal Regulation of “Two-Choice-One” Behavior of E-Commerce Platform

“二选一”行为是电商平台谋求市场竞争优势的常用手段,它被规制的原因在于其本质上是限制交易的行为,对电商商户的自主经营权、消费者的合法权益和竞争平台的公平竞争权造成了严重损害。现有法律对“二选一”行为的规制主要是《反垄断法》《反不正当竞争法》和《电子商务法》三部法律,它们虽有相对明确的规定,但也存在着《反垄断法》举证困难、《反不正当竞争法》中技术手段隐蔽、《电子商务法》打击力度不大等问题。为此,本文提出扩大认定“二选一”行为举证责任倒置的适用范围、引入相对优势条款、明确三部法律适用的逻辑等完善规制“二选一”行为的具体路径。“Two-choice-one” behavior is a common means for e-commerce platform to seek market competitive advantage, it has caused serious damage to the independent management right of e-commerce merchants, the legitimate rights and interests of consumers and the fair competition right of competition platform. The existing laws mainly regulate the “Two-choice-one” behavior in “Anti-Monopoly Law”, “Anti-Unfair Competition Law” and “E-Commerce Law”, however, there are also some problems such as the difficulty of giving evidence in the Anti-Monopoly Law, the concealment of technical means in the Anti-Unfair Competition Law, and the weak strike in the E-Commerce Law. To this end, this paper proposes to expand the scope of application of the reverse onus, introduce the relative advantage clause, and clarify the logic of the application of the three laws.