論數字平臺軸輻型算法共謀的反壟斷法規制

On the Antitrust Regulation of Spoke-based Algorithmic Conspiracies Under Platform Domination

隨著人工智能技術水平不斷進步以及産品數字化程度的不斷提高，算法憑藉提高市場透明度、提升交易頻次的特點，逐漸成為經營者在市場競爭中獲取競爭優勢的重要手段。尤其是在數字平臺經濟語境中，平臺經營者可以算法為媒介與平臺內經營者以數個縱向協議實現統一定價，達成軸輻協議，消除平臺內經營者之間的價格競爭，從而排除、限制競爭。對此，首先應當明確平臺利用算法達成的軸輻協議在法律定位上屬￿橫向壟斷協議，從意思聯絡上看屬￿默示共謀；其次，鑒于這一壟斷協議既具有軸輻協議的特殊性，又具有算法共謀的特殊性，性質複雜，認定標準模糊，應當在“外在客觀形式+內在意思聯絡+排除、限制競爭”的認定規則的基礎上著重把握軸輻型算法共謀兩大主體的內心意思表示，突破形式限制把握本質；最後，對于特殊性導致的主體責任認定問題，應當在借鑒國際實踐經驗的基礎上，遵循審慎謙抑的原則，慎重把握反壟斷規制與自由市場競爭之間的平衡。

As the level of artificial intelligence technology continues to advance and the digitization of products continues to increase. Algorithms are gradually becoming an important means for operators to gain competitive advantages in market competition by virtue of improving market transparency and transaction frequency. Platform operators use algorithms as a medium to achieve uniform pricing with operators within the platform with several vertical agreements, eliminating price competition among operators within the platform, thus excluding and restricting competition, especially in the context of digital platform economy. Firstly, In this regard, it should be clear that the spokes agreement reached by the platform using algorithms belongs to horizontal monopoly agreement in terms of legal positioning, and belongs to implied conspiracy in terms of meaningful contact. Secondly, in view of the fact that this monopoly agreement has both the peculiarities of an axial spoke agreement and the peculiarities of an algorithmic conspiracy, the nature of which is complex and the criteria for determination are vague, we should focus on grasping the inner meanings of the two main subjects of the axial spoke algorithmic conspiracy on the basis of the rules of objective external form + intrinsic meaning contact + excluding or restriction of competition, and break through the formal restrictions to grasp the essence. Finally, for the problem of subject responsibility determination caused by the special nature, the balance between anti-monopoly regulation and free market competition should be carefully grasped based on the principle of prudence and modesty with reference to international practical experience.