DOI: 10.15986/j.1008-7192.2019.04.013
备注
自动定价算法已被广泛应用于商业实践,其引发的横向价格垄断风险正受到国外学者和组织的关注,尤其是默契算法共谋的规制问题更引发了激烈讨论。自动定价算法引发的显性算法共谋和默契算法共谋将给目前的反垄断法律制度带来挑战。经由监控算法、并行算法、信令算法达成的显性算法共谋使得共谋更加高效、隐蔽且牢固,导致反垄断执法机构在执法过程中难以获取并准确识别证据; 而经由自主学习算法达成的默契算法共谋给反垄断执法机构带来的挑战则更多体现在共谋的认定本身,使得执法机构在执法过程中难以确定应当承担法律责任的主体。作为应对,立法机关应通过立法增强算法的可审计性、明确默契算法共谋中应用者的归责原则,执法机关应提升执法技术水平、继续发挥宽恕制度的作用,以实现保护竞争、维护消费者权益的效果。
The automatic pricing algorithm has been widely used in commercial practice, and so foreign scholars and organizations have paid attention to the horizontal price monopoly risk it triggered with the heated discussion about the regulation of tacit algorithm collusion especially. Explicit algorithm collusion and tacit algorithm collusion that automatic pricing algorithms present tent to challenge the existing anti-monopoly law system. The explicit algorithm collusion, using monitoring algorithms, parallel algorithms and signaling algorithms as facilitators, is more efficient, concealed and stable, which makes it difficult for anti-monopoly law enforcement agencies to obtain and identify evidence accurately in the process of law enforcement. The challenge of tacit algorithm collusion based on self-learning algorithms to the anti-monopoly law enforcement agencies is more reflected in the identification of the collusion itself, which makes it difficult for anti-monopoly law enforcement agencies to identify the subject that should bear legal responsibility. Accordingly, the legislatures should enhance the auditability of the algorithm and clarify the liability principle of applicators in tacit algorithm collusion by means of legislation. The law enforcement agencies should upgrade their enforcement technology and continue to play the role of forgiveness system so as to protect market competition and safeguard consumer rights.
