平台最惠国条款的反垄断法规制纾困——以“全网最低价”条款为切入点
The Anti-Monopoly Regulation Relief of Platform Most-Favored-Nation Clause—Taking “the Lowest Price of the Whole Network” Clause as the Starting Point

近年来，互联网经济的繁荣催生了层出不穷的新经济业态，由MFN条款(Most Favored Nation Clauses)发展而来的平台最惠国待遇条款(Platform Most Favored Nation，以下简称“PMFN条款”)已经广泛应用于各种上游供应商与电商平台间的分销模式，其中最具代表性的为双方订立的“全网最低价”条款。PMFN条款虽然可以降低交易成本，带来低价福利。但它却可能抑制上游供应商之间的竞争，导致平台之间的不法共谋，最终损害消费者的合法权益。还可能阻却相关竞争对手进入市场扩张市场份额，甚至出现恶性竞争。我国现有的反垄断法的构架下，对于PMFN条款的规制主要有垄断协议和滥用市场支配地位的路径，其中各自存在一系列困境。针对垄断协议规制PMFN条款的主体不适格等问题，可以以安全港规则和轴辐协议填补漏洞。相关市场的界定作为滥用市场支配地位的规制路径中最大的难题，应从需求主体和需求内容来明确。而对于网络效应下传统标准难以认定电商平台的市场支配地位的问题，可以引入共同市场支配地位来加以解决。
In recent years, the prosperity of the Internet economy has spawned an endless stream of new economic formats, and the Platform Most Favored Nation treatment clause developed from MFN clause (Most Favored Nation Clauses). Hereinafter referred to as the “PMFN clause”) has been widely used in a variety of upstream suppliers and the distribution model between the e-commerce platform, the most representative of which is the “whole network lowest price” clause concluded by the two parties. Although PMFN provisions can reduce transaction costs, bring low benefits. However, it may inhibit competition among upstream suppliers, lead to illegal collusion between platforms, and ultimately harm the legitimate rights and interests of consumers. It may also prevent relevant competitors from entering the market to expand market share, and even vicious competition. Under the framework of China’s existing anti-monopoly law, the regulation of PMFN clause mainly includes monopoly agreement and abuse of market dominance, among which there are a series of dilemmas. In order to solve the problems such as the inadequacy of PMFN clauses regulated by monopoly agreements, the loopholes can be filled by safe harbor rules and hub-and-spoke agreements. As the biggest problem in regulating the abuse of market dominance, the definition of relevant market should be defined from the subject of demand and the content of demand. As for the problem that it is difficult for traditional standards to identify the market dominance of e-commerce platforms under network effects, common market dominance can be introduced to solve it.