Recently, the State Administration for Market Regulation issued the Interim Provisions on Online Anti-Unfair Competition (hereinafter referred to as the "Provisions"), which is an important institutional guarantee to guide the orderly competition and innovative development of various business entities, further refines and improves the constituent elements and identification standards of online unfair competition in the Anti-Unfair Competition Law, and provides platform operators with more specific guidelines for market competition behaviors, so as to help the high-quality development of the digital economy with scientific and efficient competition supervision and law enforcement. Promote the development of high-quality factors to new quality productivity through scientific regulation and strong protection, and promote development through supervision.
The "Provisions" are timely
On April 10, 2022, the "Opinions of the Central Committee of the Communist Party of China and the State Council on Accelerating the Construction of a National Unified Market" was issued, requiring the acceleration of the construction of an efficient, standardized, fair competition, and fully open national unified market. The report of the 20th National Congress of the Communist Party of China proposed to build a unified national market, deepen the market-oriented reform of factors, and optimize the business environment. In view of the fact that fair competition is the basic principle of the market economy and the objective requirement for the construction of a unified national market, in the context of the current development of the digital economy in full swing, but the behavior of unfair competition around the Internet is emerging, ensuring a fair competition market environment is not only the key to stimulating the economic vitality of Internet operators, but also a powerful driving force to accelerate the construction of a unified national market, and ultimately help promote the high-quality development of the mainland economy.
First, in response to the increasing complexity of online unfair competition, it is in line with the trend of revising the Anti-Unfair Competition Law. In November 2022, the State Administration for Market Regulation (SAMR) released the Anti-Unfair Competition Law of the People's Republic of China (Draft Revisions for Solicitation of Comments), which further improves the anti-unfair competition legal system, and focuses on improving the anti-unfair competition rules for the digital economy, adding or refining Internet competition behaviors. The promulgation of the Provisions closely aligns with the revision trend of the Anti-Unfair Competition Law, and according to the complex and changeable characteristics of online competitive acts, a more specific and refined classification and refinement of online unfair competition acts is carried out, and the criteria for identification are clarified. In order to better adapt to the new situation of the rapid development of the digital economy, ensure the stability and fairness of the market order, strengthen the supervision of various types of online unfair competition, and provide a strong legal basis for maintaining fair competition and promoting the healthy development of the digital economy.
Second, strengthen the responsibility of platforms and maintain the order of fair competition in the market. As an important part of the digital economy, large-scale digital platforms have affected people's lives in all aspects. However, platform enterprises have the dual identities of "operators" and "managers", and the profit-seeking nature of business will drive them to use multiple advantages such as data advantages, technical means, and platform rules to build an unshakable market position, implement self-preferential treatment, data incompatibility, bundled sales, etc., and unduly exclude and hinder the market entry and normal trading of other operators' products or services, thereby affecting the market environment of fair competition.
The Provisions highlight the main responsibilities of platforms, strengthen their responsibilities and obligations in the digital economy, and strengthen the supervision and regulation of large-scale digital platforms. At the same time, platform enterprises are urged to strengthen the regulation and management of competitive conduct within the platform, promptly restrict the occurrence of unfair competition, and protect the rights and interests of other business operators in fair competition. By clearly stipulating the responsibilities and obligations of platform enterprises, it will help platform operators better regulate their own business behaviors and provide a more stable and healthy competitive environment for market players.
Third, accelerate the construction of a unified national market and promote the high-quality development of the digital economy. With the acceleration of digitalization, competition has extended from the traditional industry to the Internet field, and in this context, the number of competitive behaviors of enterprises in the Internet field is increasing, the types are gradually diversified, and the forms are becoming more hidden. All kinds of behaviors that restrict the market access of other business operators or restrict the normal operation of competition will hinder the improvement of the efficiency of economic operation, restrict the free flow of commodities and factors, fair competition, and restrict the formation of a unified national market. The promulgation of the "Provisions" is closely related to the construction of a unified national market, which provides a good institutional guarantee and development environment for the formation of a unified national market by breaking down the industry barriers of the platform economy, promoting the free flow of new elements such as data, and realizing the optimal allocation of resources, maintaining a fair competition environment in the market, and improving the transparency and efficiency of the market.
The "Provisions" focus on key points
By adhering to the practice orientation and paying attention to the effect of regulation, the "Provisions" strive to improve the standards and regulatory requirements for the identification of online unfair competition, and build a fair competition system with high standards and high levels. The issuance of the Provisions highlights the interweaving between legislation and law enforcement, so as to better serve the order of fair competition in the market and the overall development of the digital economy. Through clear provisions and requirements for online unfair competition, the legislative purpose of the Anti-Unfair Competition Law is implemented, fair transactions between business entities of different sizes are guaranteed, the increasingly complex market environment and competition pattern are more effectively coped with, and the coordinated development of all types of enterprises is promoted to create a good market environment.
On the one hand, adhere to the practice orientation and comprehensively sort out the acts of unfair competition in the cyber field. With the rapid development of the digital economy, the Provisions proceed from the strategic perspective of promoting the high-quality development of the digital economy and building a unified national market, and in view of the contradictions in the field of the Internet economy that urgently need to be regulated, persist in sorting out and refining the acts of unfair competition that occur in law enforcement and judicial practice, and strive to improve the standards and regulatory requirements for the identification of acts of online unfair competition. The first is to respond to hot social issues, and to regulate new types of false propaganda behaviors born in the Internet environment, such as swiping orders and praise cashback, and standardize Internet marketing behaviors; The second is to refine the Internet competition behavior, clarify the three types of "special provisions on online unfair competition", namely, traffic hijacking, improper interference and malicious incompatibility, and specify in detail the forms of their manifestations and identification factors. The third is to regulate other new types of unfair competition that use data means or platform rules to ensure a fair competition environment in the market.
On the other hand, we should pay attention to the effect of regulation and realize the participation of multiple subjects and the coordinated governance of multiple laws. First of all, the main responsibility of the platform is emphasized. Article 6 of the Provisions states that "platform operators shall strengthen the regulation and management of competitive behaviors within the platform, and shall take necessary measures to deal with them in a timely manner if they are found to have adopted unfair competition methods", given that the development and health of the platform as an important carrier of the digital economy directly affect the competitive environment of the entire market. This provision clarifies the responsibilities of platform operators in maintaining the order of fair competition, includes platforms in the supervision and management of Internet competitive behaviors, effectively links the pressure of administrative law enforcement, and is conducive to preventing and stopping the spread of various violations of laws and regulations on the platform in advance, and maintaining the market order of fair competition.
Second, an expert observer system should be established, and third-party professional institutions should be introduced to supervise and evaluate online acts of unfair competition. Expert observers have extensive industry experience and expertise, and are able to objectively and impartially assess the nature and impact of unfair competition acts, and provide professional advice and opinions. The establishment of this system will help strengthen supervision, strengthen supervision of online unfair competition, and improve the efficiency and level of law enforcement. At the same time, the establishment of the expert observer system will also help promote the scientific and normative implementation of the law, and ensure that the law enforcement behavior complies with the provisions of the law and professional standards.
Finally, the "Provisions" have formed an organic connection and mutual support in the legal system to achieve multi-law coordinated governance. With the Anti-Unfair Competition Law as the basic framework, the Provisions clarify the criteria and scope of online unfair competition, and provide a solid legal foundation and strong legal guarantee for effectively cracking down on online unfair competition and maintaining the order of fair competition. As an important law to maintain the order of market competition, the Anti-Monopoly Law regulates monopolistic behaviors such as abuse of market dominance, tying, and bundling, and provides reference and support for the prevention of platforms from abusing data advantages in the Provisions. The E-Commerce Law has specific legal provisions on acts of unfair competition involving e-commerce, and provides specifications for handling the relevant content of platform transactions in the Provisions.
The positioning and cohesion of the "Provisions".
First of all, the positioning of the formulation and implementation of the "Provisions" should be clarified. Article 1 of the "Provisions" clearly stipulates that "these Provisions are formulated in accordance with the Anti-Unfair Competition Law of the People's Republic of China, the E-Commerce Law of the People's Republic of China and other laws and administrative regulations. It can be seen that the Provisions are a further interpretation and refinement of the implementation of the current Anti-Unfair Competition Law and the E-Commerce Law, rather than a separate provision in addition to or above the current Anti-Unfair Competition Law and E-Commerce Law. Based on this, the relevant provisions of current laws and administrative regulations must be complied with when understanding and applying the Provisions.
Specifically, with regard to the regulation of anti-unfair competition acts in the online field, from the provisions of the current Anti-Unfair Competition Law, they are broadly divided into traditional acts of unfair competition and new types of online acts of unfair competition using technology. Therefore, in the specific implementation of the Provisions, two types of behaviors should also be distinguished, and even if they both occur in the cyber field, their regulatory concepts, ideas and methods should also be different. For the online presentation of traditional acts of unfair competition, it is still necessary to judge based on the illegal components of traditional acts of unfair competition, and for elements such as competitive relationships, identification of competitive acts and effects, it is necessary to pay attention to pre-emptive regulation only for the regulation of new types of unfair competition acts in the cyber field using technical means. In other words, because the current network has become the background of daily production and life, based on the fact that the network is ubiquitous, it is necessary to maintain the need to regulate the regulation itself.
Secondly, attention should be paid to the logical sequence of refinement, optimization and improvement of the relevant provisions of the current Anti-Unfair Competition Law, such as the Internet Special Article and the E-Commerce Law, and abide by the principles of clarity, predictability and stability of the Law, so as to standardize the implementation of the Provisions. Focusing on online unfair competition in Chapter 2 of the Provisions, we will further refine and optimize the provisions of the Anti-Unfair Competition Law and the E-Commerce Law on unfair competition in the online sector.
For example, Articles 7 to 11 are actually refinements of the networked form of traditional unfair competition in the Anti-Unfair Competition Law. Articles 12 to 22 are equivalent to the refinement and development of Article 12 of the current Anti-Unfair Competition Law, which provides a good normative basis for the identification of new types of unfair competition on the Internet by using technical means through refined legislation, especially emphasizing the consideration of the damage caused by the "use of technical means" to "disrupt the order of fair market competition", and raising concerns about legitimate reasons, which are all further clarifications on the implementation of the Internet Article. Objectively, it expands the types of acts that may be found to be illegal, and makes Article 22 a catch-all clause to include acts of unfair competition by means of "using the Internet" and "using technology"; Articles 23 to 25 are mainly the refinement and expansion of Article 35 of the E-Commerce Law; Article 26 is also a general interpretation of the key identification issues in the entire Chapter II of acts of online unfair competition, including the determination of "use of networks" and "use of technology" in the two categories of "obstructing or undermining the normal operation of network products or services lawfully provided by other business operators". This constitutes the design of the entire second chapter of the articles. Generally speaking, Chapter 2, as the most important and concerned part of the Provisions, also carries the heaviest weight, and attempts to refine, optimize or expand the most influential and controversial provisions of the Anti-Unfair Competition Law and the E-Commerce Law to achieve a more operational purpose, and basically achieves its formulation goal.
However, because it is a fusion and supplement to the existing laws, and in order to respond to the reality of the rapid growth of competitive behavior in the network field in a timely manner, it is inevitable that there will be a possibility of overlapping or overlapping, which brings challenges to how to accurately implement supervision in practice, for example, there is a great possibility of overlapping application in the understanding and application of Articles 21, 22 and 26, in other words, for operators, "there is always one suitable for you". Although this solves the problem of insufficient applicability of laws and regulations to a certain extent, it also gives rise to concerns that "I will not be immune to any matter what" for business operators.
Objectively speaking, it is the norm for the law to lag behind the social and economic production and life, and it is for this reason that the need for clarity, predictability and stability of the legal provisions is very important, and it should be the basic value of the law to avoid "ex post facto law (punishment)". In other words, even if there are "loopholes" in the law, it is a norm, and it is not possible to require the behavior of operators to completely fall into the scope of legal regulation, which itself is also unreachable in practice, otherwise there can only be expansionism of legal provisions, or rigidity of business activities, or even rent-seeking of regulatory powers, which should be paid attention to and avoided in the implementation of the Provisions. Legal perfectionism is difficult to achieve in practice, and special legislative perfectionism is even more difficult to achieve.
Finally, it is necessary to do a good job in the transformation and connection of the "Provisions" in civil judicial adjudication, so as to enhance the predictability of the judicial adjudication of relevant parties in cases of disputes over online unfair competition. According to Article 4 of the "Provisions of the Supreme People's Court on the Citation of Laws, Regulations, and Other Normative Legal Documents in Judgment Documents", "civil judgment documents shall cite laws, legal interpretations, or judicial interpretations. Administrative regulations, local regulations, or autonomous regulations and special regulations that shall be applied may be directly cited. In other words, departmental rules cannot be directly cited as the basis for adjudication in civil litigation, but in accordance with Article 6 of the "Provisions of the Supreme People's Court on the Citations of Laws, Regulations, and Other Normative Legal Documents in Judgment Documents", other normative documents that are found to be lawful and effective after review may be used as the basis for adjudication reasoning according to the needs of the trial case. This provides space for the transformation and application of the Provisions.
In fact, at present, the judicial organs have accepted most of the cases in the handling of disputes over unfair competition in the online field, especially in the field of unfair competition in data, and some generally feasible and widely accepted trial rules have been initially formed. The rule of law environment here includes not only a regulatory and law enforcement environment, but also a judicial supervision environment, as well as a law-abiding environment for all people in society. Therefore, in the process of implementing the Provisions, it is necessary to deal with the system coordination relationship between multiple dimensions, departments, subjects and levels, and the issuance of the Provisions is only the first step in regulating online unfair competition, and the follow-up work is more important and more challenging.
Author: Chen Bing
编辑：Eleven