On November 10, the State Administration of Market Supervision issued the anti-monopoly guide on platform economy (Draft for comments), which mentioned the phenomenon of “choose one from two” and “kill the big data” widely concerned by public opinion in recent years. The implementation of differential treatment, the defamation of goodwill, and the illegal and illegal competition behaviors such as forced trading were also named. On the same day, shares of Ali, Tencent, meituan, Jingdong and pinduoduo fell sharply. In recent years, “618” and “double 11” have always become a high incidence period of “two to one” disputes in recent years. This year, the front line of one case has been extended. < / P > < p > since April this year, some businesses have reported that vipshop, a well-known platform focusing on brand specials, has begun to ask businesses to choose one from another between the company and its competitor “love inventory”. < p > < p > vipshop started its business by relying on the tail goods of clothing. The dominant categories are clothing, shoes, bags, etc. among the user groups, more than 80% of the female members are from the clothing category, and 70% of the Gmv is contributed by the clothing category. These characteristics have novel coronavirus pneumonia’s impact on the garment industry. In the first quarter of 2020, China’s total retail sales of clothing, shoes, hats, needles and textiles decreased by 32.2% year-on-year, while the retail sales of cosmetics decreased by 13.2% year-on-year. Under the influence of the epidemic situation, the Gmv of vipshop Q1 in 2020 decreased by 14.5% to 28.9 billion yuan, due to the delay of logistics services, the slow response of supply chain and the weak demand of consumers for optional categories. In addition to special sales, the company’s product sales revenue was 17.96 billion yuan, a year-on-year decrease of 12.2%; other revenue was 830 million yuan, a year-on-year decrease of 3.5%. < / P > < p > merchant a is a supplier. The company told observer. Com that vipshop sometimes has such requirements, but it is often a “gust of wind”. However, this time it was a real move in August. They used monitoring software to monitor. Once they found that the business was online in love inventory, they immediately removed the goods from the shelves of vipshop online, and required the merchant to communicate with each other at work The group indicated that they voluntarily gave up their cooperation with vipshop. < / P > < p > merchant a said that it had been completely stopped cooperating with vipshop. Last year, its sales volume on vipshop platform reached 50 million and 60 million, so it had to make a decision to lay off employees. As a supplier, the desire is very simple, that is, which platforms they want to go to should be chosen by the merchants themselves, rather than forced by the platforms. < p > < p > merchant B is an entrepreneur who graduated from university soon. She reflected to observer.com that after being forced to “choose one from two”, she had to take it off the shelves in love inventory. This not only caused the loss of her sales channel, but also greatly affected her reputation among consumers due to the sudden event. < p > < p > she said that the pressure on young people’s employment is relatively high, especially this year, affected by the epidemic, the downward pressure on the economy is already great, and consumption is not very good. In such a situation, we all hoped to find as many outlets as possible. In fact, the choice of “one from two” has reduced many people’s choice channels. Although it may protect the interests of vipshop, its value to the whole society may decline. < p > < p > AI inventory told observer.com that on September 11, vipshop forced the supplier to “choose one from two” by sending a real name report to the State Administration of market supervision, Guangdong market supervision administration, Guangzhou market supervision administration and Guangzhou Liwan district market supervision administration. < p > < p > AI inventory said that its repeated attempts to communicate with vipshop were fruitless. Since the submission of the complaint letter in early September, the scale of the affected businesses has been expanding, from about 400 to more than 500, and 150 merchants were affected in November alone. < p > < p > the observer network tried to contact vipshop on the 24th. After answering the phone call, the customer service promised to give feedback and reply to the relevant departments of the company, but there was no further reply as of the time of publication. < / P > < p > it happens that the “anti monopoly guidelines on platform economy” (Draft for comments) issued on November 10 and the measures for supervision and administration of online transactions (Draft) issued on October 20 are both in the stage of public consultation. Both documents mentioned the phenomenon of “one of two choices”. The observer website consulted many legal scholars and lawyers on this issue. < p > < p > Professor Xu Chunming, Dean of the school of intellectual property of Shanghai University, told observer.com that legal judgment is needed to determine whether the act of “choose one from two” is illegal. There are only two situations that lead to the violation. The first is “monopoly”, and the second is “unfair competition”. Among them, the determination of “monopoly” is very strict, and it must be required that the platform has formed a market dominant place in the relevant market Then he will abuse the dominant position of the market, restrict and eliminate competition, which will constitute one of the “monopoly” behaviors defined in the “anti monopoly law” — the abuse of market dominant position. The most famous case of Jingdong suing tmall. In fact, the most difficult thing is to determine whether tmall has a “dominant market position” in the relevant market. Until now, the focus of this case may be on this point. From the perspective of “Anti Unfair Competition”, there is no clear provision that “choose one from two” is a kind of unfair competition. Although Article 12 of the anti unfair competition law is commonly known as “Internet terms”, in fact, Article 12 does not involve the “choose one” business behavior of e-commerce, but only regulates the compulsory deletion and installation. Therefore, if we want to use the anti unfair competition law, we should apply the provisions of Article 2 of the law, which is a general rule of principle, to determine whether the market subject violates the good faith and business ethics. In fact, in the field of intellectual property rights, such exclusive license and exclusive license are relatively common. The key is whether the expression of intention of both parties to conclude the exclusive agreement is free, sufficient and true. The recently published “measures for the supervision and administration of network transactions (Draft for comments)” mentions “choose one from two”, which also implements this spirit. From the current judicial practice, although the “two choose one” behavior has a long history, widespread existence and heated discussion, the government has always held a high degree of concern, but the attitude of “inclusiveness and prudence” is not only that the court has not made relevant judgments, but also the market regulatory authorities are less rigid in enforcing the law, and more often than not, the parties to the dispute are interviewed for mediation. < / P > < p > “according to the relevant provisions of the” e-commerce law “, the current administrative penalty limit is 2 million yuan,” Wang Xiaobing, executive director and partner of Longtian law firm, told observer.com, “this punishment is a small part compared with the benefits that Internet enterprises can obtain through” one by two “means. The cost to enterprises is not high High, so some enterprises will have the incentive to do so. ” According to Lawyer Wang Xiaobing, “choose one from two” will hinder the full competition of the market and damage the consumers’ right of independent choice. In the end, if this behavior is not regulated, it will damage the interests of some businesses and merchants on the platform, and ultimately the consumers will pay for the loss. However, on the other hand, the orderly competition of the market is a delicate balance and a kind of public interest. To maintain this balance, we should pay attention to ways and methods. According to Liu Wei, associate professor of Kaiyuan Law School of Shanghai Jiaotong University, when the market economy encourages full competition under the autonomy of will, the government should not interfere in the market casually; only when certain market entities have accumulated enough advantages and are able to stifle competition, which in turn harms the freedom of competition, the government should take appropriate measures. Liu Wei told observer.com that a very interesting phenomenon can be found by combining the phenomenon of “one of two choices” with the process of China’s overall Internet governance.
our Internet and e-commerce development started in 90s, and it was a jungle rule in 90s. If WeChat and Alipay were very strict at that time, China’s Internet would not develop. At that time, we had a “tolerant and prudent” attitude towards Internet governance. But now over 20 years have passed. The world has been evolving, and many rules have been gradually established. Do we still need to be tolerant and prudent with internet giants? < / P > < p > in November 2019, pinduoduo and vipshop applied to the Beijing high court to join the famous Jingdong v. tmall’s “one out of two” lawsuit as a third party. Before that, Jingdong sued tmall for abusing its dominant market position and claimed 1 billion yuan. Vipshop and pinduoduo, as Tencent’s “Tencent system”, have highly consistent reasons for applying to join the lawsuit. The two e-commerce companies believe that the two companies are also competitors of tmall, and in the same relevant market, they are also affected by the “choose one from two”. Therefore, the judgment result of Jingdong suing tmall will have a legal interest in the two companies. According to its announcement on March 10, 2014, it became an important shareholder of Tencent. According to JD’s 2018 annual report, Tencent holds 17.8% of the shares, which is the largest shareholder, and Liu qiangdong holds 15.4% of the shares, which is the second largest shareholder. In recent years, Tencent has also invested in e-commerce platforms such as pinduoduo and vipshop. In December 2017, vipshop announced that Tencent and Jingdong invested about $863 million in vipshop in cash. After the transaction, Tencent and Jingdong held 7% and 5.5% shares of vipshop respectively. According to pinduoduo’s 2018 annual report, Tencent holds 16.9% of shares, making it the second largest shareholder. As a result, the three “Tencent” e-commerce companies such as Jingdong, pinduoduo and vipshop have formed a group, intending to besiege “Ali system” tmall at the judicial level on the dispute of “one out of two”. On the surface, it seems that some companies are fighting against each other, but behind it is actually the process of factions attacking each other and recruiting the new forces by using the attack. < p > < p > of China’s top 30 mobile phone applications announced by new fortune this month, seven of them are from Alibaba and Tencent. The number of active users of Tencent system is 5.737 billion, while that of Alibaba is 3.128 billion. According to the statistics of West China Securities Research Institute, the tripartite situation of “bat” (Baidu, Ali and Tencent) in China’s Internet has evolved into “at” with the rapid expansion of Alibaba and Tencent. Last year, Alibaba’s revenue reached 500 billion yuan, Tencent nearly 400 billion yuan, and Baidu remained at 100 billion yuan level. < / P > < p > now is the time to introduce anti-monopoly measures on the Internet. Bai Shipan, a visiting professor at the National University of Singapore and former dean of the Singapore monetary authority college, told the media that it would be too late to impose restrictions on Chinese Internet companies when they were “too big to fail” like Google and Facebook. In the early stage of China’s Internet economic development, the government has been taking a more lenient approach Loose regulatory posture, thus contributing to the rapid rise of Alibaba and Tencent and other Internet giants. < / P > < p > “now that the wings of Internet enterprises are hard and the risks are high, it is time to put them in a cage,” said Bai Shipan. “If the number of leading enterprises in various internet economic fields can be increased to four to six, each of them will occupy the market share