Establish a sound
2024-07-05
Recently, the State Administration for Market Regulation announced the "Interim Provisions on Anti Unfair Competition in the Internet" (hereinafter referred to as the "Interim Provisions"), which will come into effect on September 1, 2024. The Provisional Regulations provide clear guidance and bottom line for various business entities by improving and clarifying the "traffic light" rules for online competition behavior, which is conducive to maintaining a fair competition market order and safeguarding the construction of a unified national market. With the rapid development of the internet economy, traditional unfair competition behaviors have extended online, and the continuous innovation of business models has generated new unfair competition behaviors, bringing new impacts to the fair competition market order. In 2017, the Anti Unfair Competition Law was revised and passed, adding the "Special Article on Internet Unfair Competition". In 2018, the United Nations Conference on Trade and Development released data stating that China has become the world's largest market for B2C (business to consumer) e-commerce. In the same year, the E-commerce Law was introduced to clearly regulate the "two choices" and unreasonable fees of e-commerce platforms from the perspective of maintaining transaction order. The Provisional Regulations further refine the Anti Unfair Competition Law and the E-commerce Law, and supplement and improve the rules of e-commerce competition based on practical needs, highlighting the following four points: firstly, adding various forms of online false advertising to address the issue of brushing orders and speculation. The credit evaluation system of e-commerce platforms is an extremely important component of their business system, which is related to the platform's reputation and also an important reference for consumers to make purchase decisions. The 2020 Report of the Law Enforcement Inspection Team of the Standing Committee of the National People's Congress on the Implementation of the Anti Unfair Competition Law of the People's Republic of China pointed out that some businesses intentionally increase transaction volume and attract consumer attention by artificially brushing orders, which not only harms the rights and interests of operators and consumers, but also affects the healthy development of the entire online economy. In this regard, Article 9 of the Provisional Regulations prohibits the use of online brushing, positive feedback cashback, and other methods to carry out misleading commercial propaganda. The second is to make specific regulations on the new type of unfair competition behavior of reverse brushing orders. With the stricter monitoring of brushing behavior on e-commerce platforms, a new gameplay has emerged in practice, which utilizes the supervision mechanism of e-commerce platforms to crack down on their competitor stores. For example, intentionally purchasing a large number of products from competitor stores without payment, or even specifically giving positive reviews to one's own competitor stores or products, thereby triggering the platform's supervision mechanism for brushing orders and speculation behavior, causing competitor stores to be downgraded, restricted, or even shut down by the platform. These behaviors, commonly known as "reverse brushing" in the industry, also harm the rights and interests of platforms, shops, and consumers. In this regard, Article 16 of the Provisional Regulations further clarifies that such "reverse brushing" behavior constitutes unfair competition. The third is to refine the "one out of two" regulation and further emphasize that the platform shall not charge unreasonable fees to operators within the platform. Protecting the rights and interests of small and medium-sized businesses from being oppressed by the platform economy is an essential part of a fair competition order and the starting point of Article 35 of the E-commerce Law. The Provisional Regulations have two specific provisions to refine the upper level law and strengthen the protection of small and medium-sized businesses. The early "two to one" cases reflected that, in addition to forcing merchants to sign exclusive agreements, e-commerce platforms often implement "two to one" measures through covert restrictions, such as traffic restrictions and sales area restrictions on merchants opening stores on other platforms. Article 24 of the Provisional Regulations provides a detailed list of this. Article 25: Regarding the issue of fees, it is further clarified that e-commerce platforms are required to determine the fee standards fairly and reasonably in service agreements and transaction rules, and shall not violate commercial ethics and industry practices by charging unreasonable service fees to operators within the platform. The fourth is to strengthen the responsibility of e-commerce platforms and assume the obligation to discover and deal with unfair competition behaviors of operators within the platform. Given that platforms do not have the ability to comprehensively and accurately judge the illegality of competition behavior among operators within the platform in practice, the Provisional Regulations, based on the existing regulatory experience of Article 29 of the E-commerce Law, scientifically stipulate platform responsibilities and establish a "necessary disposal, effective preservation, and timely reporting" system in the field of anti unfair competition. This not only reduces the burden on platforms to a certain extent, but also facilitates regulatory authorities to timely detect and dispose of relevant behaviors. The Provisional Regulations adopt an open and transparent rule system to stabilize market expectations, boost development confidence, and accurately grasp the ultimate goal of promoting development during implementation, continuously improving the scientific, normative, coordinated, and stable nature of law enforcement and supervision. The Provisional Regulations list many new types of unfair competition behaviors. In order to avoid inappropriate intervention in market free competition and hinder technological development and innovation, the Provisional Regulations refine the constituent elements and identification factors from the perspectives of behavioral characteristics, competition damage, industry influence, etc., which is conducive to a more comprehensive analysis of the legitimacy of the behaviors involved. Article 12 is the first to clarify that when determining whether it constitutes unfair competition, full consideration should be given to factors such as whether it is conducive to technological innovation and industry development. Therefore, in case determination, it is necessary to comprehensively consider the above factors and leave space for market self-regulation and technological and industrial innovation. In addition, in terms of legal responsibility, the Provisional Regulations do not directly stipulate the method of assuming legal responsibility, but instead refer to the corresponding penalty provisions of the Anti Unfair Competition Law and the E-commerce Law as superior laws. To ensure consistency in the application of departmental regulations and laws, special attention needs to be paid to the different scope of the two legal entities mentioned above, and attention should be paid to distinguishing them when applying them. For example, Article 32 and Article 38 of the Provisional Regulations apply relevant provisions of the E-commerce Law, and the responsible party is the operator of the e-commerce platform; The corresponding behavioral norms can also be found in the E-commerce Law, and the obligation subject is also the operator of the e-commerce platform, reflecting the consistency of legal responsibility and behavioral norms. As a departmental regulation, the Provisional Regulations should be detailed and implement the provisions of the superior law, combined with the requirements of the principle of lawful administration, and the obligation subject "platform operators" in the behavioral norms should be consistent with the e-commerce law as the superior law, targeting e-commerce platform operators. (Le Xin She) (Author Yin Shaocheng, Vice Dean, Professor, and Doctoral Supervisor of the School of Law at Capital University of Economics and Trade)
Edit：Jia jia Responsible editor：Liling
Source：http://www.legaldaily.com.cn
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