电子商务“二选一”行为的竞争法规制困境及出路
The Dilemma and Approach of Competition Law Regulation of “Either-Or” Behavior of Electronic Commerce

在我国现行法律体系的框架下，规制“二选一”行为看似有法可依，实则面临着无法可循的局面。《反垄断法》面临着滥用市场支配地位条款难以界定市场支配地位，“无正当理由”证成依据缺失的问题，垄断协议条款存在着适用主体受限、非价格垄断协议的认定缺乏适用标准等困难。《电子商务法》《反不正当竞争法》亦存在与此相关的条文，但相关规定或缺乏相应的理论基础，或原则性强而可操作性低，或与该等行为的特征不符，实际约束力偏弱。要规制目前的困境局面，首先要厘清各部门法之间的关系，消除《电子商务法》第35条架空《反垄断法》滥用市场支配地位条款的风险，构筑起反垄断法和反不正当竞争法互相协调，相互补充的二元规制格局。其次要明确电子商务领域确认市场支配地位的要素，对“无正当理由”进行证成，将独家交易协议解释为纵向垄断协议条款的适用情形。并对《电子商务法》第35条进行限缩解释，引入滥用相对优势地位理论明确其理论基础，明晰具体适用条件，提高该条款的可执行性。
Under the framework of our current legal system, it seems that there is a legal basis for regulating the “either-or” behavior, but in fact, it is facing a situation that cannot be followed. With the application of the Anti-Monopoly Law, the abuse of market dominant position clause is faced with the problems of difficult to define market dominant position and lack of evidence of “no justification”. There are some difficulties in the terms of monopoly agreement, such as limited subject of application and lack of applicable standard for the identification of non-price monopoly agreement. There are relevant provisions in the Electronic Commerce Law and the Anti-Unfair Competition Law, but the relevant provisions either lack the corresponding theoretical basis, or are strong in principle but low in operability, or are inconsistent with the characteristics of these acts, and the actual binding force is weak. In order to regulate the current difficult situation, we must first clarify the relationship between the various departments of law, eliminate the risk of the Anti-Monopoly Law abuse of market dominance clause in Article 35 of the Electronic Commerce Law, and build a dual regulatory pattern in which the anti-monopoly law and the anti-unfair competition law coordinate and complement each other. Secondly, it is necessary to clarify the elements of confirming market dominance in the field of e-commerce, to certify “without justification”, and to interpret the exclusive transaction agreement as the application of the terms of the vertical monopoly agreement. Article 35 of the Electronic Commerce Law is interpreted in a limited way, and the theory of abuse of comparative advantage status is introduced to clarify its theoretical basis and clarify specific applicable conditions to improve the enforceability of the article.