論大型平臺企業數據交易強制締約義務

在數字經濟發展過程中，大型平臺企業積累了海量數據資源，與中小市場主體之間形成“數據鴻溝”，一些中小市場主體需要大型平臺的數據支持方能持續經營。但大型平臺為了維護競爭優勢，會拒絕中小市場主體合理的數據交易請求，而數據爬取又因受到法律約束，無法滿足中小市場主體的數據獲取需求。由於適用反壟斷法框架下的“必要設施原則”和“拒絕交易責任”無法有效破解“數據鴻溝”問題，為平衡大型平臺的數據權益及中小市場主體的發展權益，應回歸民商法路徑推動大型平臺開放數據，建立大型平臺數據交易強制締約義務制度。在構建大型平臺數據交易強制締約義務制度時，應當謹慎設置適用條件並明確制度內涵，防止該制度過度適用造成負面效果。

In the process of digital economic development, large platform enterprises have accumulated a large amount of data resources, creating a“digital divide”between large platforms and small and medium market players. Some small and medium market players need the data support of large platforms to continue their business. However, in order to maintain competitive advantages, large platforms tend to refuse reasonable data transaction requests of small and medium market players, and data crawling cannot meet the data acquisition needs of small and medium market players due to the great constraints of law. Since the application of the“essential facility doctrine”and“refusal to deal”under the framework of antimonopoly law cannot effectively solve the problem of“digital divide”, in order to balance the data rights and interests of large platforms and the development rights and interests of small and medium market players, it should return to the path of civil and commercial law to promote the data opening of large platforms and establish the compulsory contracting obligations of large platform in data transactions. When constructing the compulsory contracting obligation system of large platform in data transactions, caution should be exercised to set the applicable conditions and to clarify the system connotation to prevent the negative effects caused by the excessive application of the system.