奇虎诉腾讯滥用市场支配地位纠纷上诉案二审判决的评析_谢冠斌

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1132

Comment on the 2nd Instance Decision of Qihoo v. Tencent for Abuse of Market Dominance

XIE Guan-bin JIN Yi JIAO Shan

Abstract: Since China's Anti-Monopoly Law(AML) came into force in 2008, the lawsuit for abuse of market dominance by Qihoo against Tencent is the first case heard and decided by the Supreme People's Court(SPC) under AML, of which the hearing and the judgment has been intensively discussed among scholars and practitioners. The text of the 2nd instance decision was analyzed by combining with the provisions of AML and the general analysis method of anti-monopoly cases. The SPC's understanding and application of the specific provisions of AML was studied to provide an example for solving the principal issues in AML enforcement and private litigations in the future. The SPC made some excellent arguments in the decision, such as the application of hypothetical monopolist test in free market and the decision of relevant geographic market. Meanwhile, the SPC's decision left some issues for discussion. For example, for the issue of the function of market share in finding market dominance and whether deciding relevant market is a basic fact in anti-monopoly cases, the SPC's answers were vague, and even inconsistent.

Keywords: Abuse of Market Dominance; Relevant Market; Product Market; Geographic Market; Internet

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