Practice and Improvement of Anti-Monopoly Supervision on Data in China

Abstract： In the context of digital economy， the State Council designated data as a factor of production such as land， labor， capital， and technology in China， which not only integrates into all aspects of production and life， but also relates to the creation of a fair competition in the digital economy market with data as the core element. In practice， China has already formulated relevant provisions on data anti-monopoly at the legislative level and regulated data monopoly at the law enforcement level. However， with the development of the digital economy represented by the platform economy， the monopolistic behaviors formed by data elements have become diversified and more hidden， how to effectively regulate data monopolies is still difficult. The main reasons for the inability to effectively regulate data monopolization are that the basic theoretical system related to data is not establish， the legal attributes are not yet clear， and the data infrastructure is not perfect. To effectively regulate data monopolies， it is indispensable to implement precise， agile and interdepartmental comprehensive regulation. At the same time， the construction of the basic theoretical system for data， data circulation and trading system， and data infrastructure should also be further strengthened， to constitute a complete data anti-monopoly regulatory system suitable for China's national conditions.

Keywords： data elements; anti-monopoly regulation; digital economy; internet platform economy field; China mainland

CLC： D 913； DF 414 " " DC：A " " " " " " " Article： 2096?9783（2024）03?0112?10

1 The Status of Data Monopoly Regulation in China

1.1 The Rising Status of Data Elements

China has a wealth of experience in exploring data in the digital economy. The Fourth Plenary Session of the 19th CPC Central Committee made it clear for the first time that data could be distributed as a production factor according to their contributions[1]， which means that the State Council formally designated data as a factor of production such as "land， labor， capital， and technology in China. Data elements have become one of the most important factors of production in digital economy， and the accumulation of data helps market entities to gain competitive advantages and market power[2-3]. It seems clear that the core competitiveness of platform companies lies in data， and for platform enterprises， data is a key element in determining whether they can gain competitive advantages. New technologies， new industries， and new markets continue to emerge. As a result， the collection， use， trading and sharing of data have become the most common behaviors in the market. At the same time， data-related competitive behavior has gradually attracted great attention from competition enforcement agencies around the world. Indeed， while the concept of \"data monopoly\" in the context of the digital economy has not reached a unanimous viewpoint in theory and practice[3]， but many countries have responded to data-related competition with concrete supervisory actions. As the second largest economy in the world， the Chinese government has also strengthened the regulation of data monopolies and has formulated and issued a series of laws and regulations to supervise data-related monopolies.

China introduced the similar concept of \"data monopoly\" earlier in the wake of the infringement of consumer rights by fintech companies represented by Ant Group. Guo Shuqing， chairman of the China Banking and Insurance Regulatory Commission at that period said at the Singapore Fintech Festival 2020 that \"we would promote fair competition， and that the fintech industry is characterized by 'winner-takes-all market'， where large tech companies use their data monopoly to disrupt the fair competition in the market and reap exceptional returns\". In contemporary society， digitalization is becoming a significant factor in restructuring the allocation of resource， reshaping industrial development， changing competitive landscape， and emerging new industrial forms. Data-Related monopolies are gradually spreading among various digital industries from fintech industry. As far as the development of the digital industry is concerned， the key lies in the co-enhancement of the sharing level and governance capacity， and the key to realizing fair competition lies in the adoption of effective means to regulate highly data-concentrated markets[4].

On March 20， 2020， the Chinese government stated in its Opinions of the CPC Central Committee and the State Council on Improving the Systems and Mechanisms for Market-Based Allocation of Factors of Production that it would accelerate the cultivation of the data factor market as an important part of improving the market-based allocation of factors， and noted that it should promote the effective circulation of data， enhance the value of its use as well as strengthen the protection of data， and set up data governance mechanisms. For the digital market to develop in an orderly manner， it is necessary to effectively regulate the behaviors that may be committed by digital market operators to restrict competition and maintain the competitive order[5]. The Anti-Monopoly Law， Guidelines of the Anti-Monopoly Commission of the State Council for Anti-Monopoly in the Field of Platform Economy （2021） （the 'Guidelines' ）， and the Provisions on Prohibiting Monopoly Agreements， which have been enacted by China's relevant legislature， prohibit， to varying degrees， the use of data by operators to commit monopoly behaviors， but do not specify the criteria for the identification of data monopolistic acts. In practice， due to the special nature of monopolistic behavior using data as an production factor， traditional antitrust supervisory means and evaluation criteria such as relevant market definition methods may not to be applied directly[6].

In December 2023，the China's annual central economic work conference held in Beijing set a clear direction for China's economic development in the coming years. The meeting concluded that it is necessary to promote industrial innovation through technological innovation， especially by using ground-breaking and cutting-edge technologies to foster new industries， new models and growth drivers， and develop new productive forces. At the same time， it is also necessary to vigorously promote new industrialization， develop the digital economy， and accelerate the development of artificial intelligence. At present， in addition to the digital economy， the promotion of new industrialization， artificial intelligence and other industries are also extremely closely related to data. "It was emphasized at the meeting that chain will continue to focus on the development of the digital economy as the core priority in the next period and strengthening the construction and development of the data anti-monopoly supervision system is still a top priority.

1.2 Data Monopoly has been Taken Seriously

The issue of whether data constituted an essential facility is extremely controversial[7-8]， but in practice， the data-related monopolies have become a significant part by Chinese anti-monopoly enforcement authorities， and there are jurisprudential and legal basis in China's Anti-Monopoly Law enforcement system. In terms of the legal objective， since the multi-objective Anti-Monopoly Law is designed for the economic objectives and non-economic objectives， it is possible to better adapt the existing law to the complex issues brought about by economic development. As the most important antitrust law in China， the Anti-Monopoly Law is the basic guideline for regulating and governing data-related monopoly behaviors. Article 9 of China's Anti-Monopoly Law provides that \"An undertaking shall not engage in monopolistic conduct prohibited by this Law by data， or an algorithm， technology or capital advantage， or platform rule， among others\". This article clarifies the role that data plays in China's antitrust regulation. In addition， Article 22 of the Anti-Monopoly Law states， \"An undertaking with a dominant market position shall not engage in the acts of abusing the dominant market position specified in the preceding paragraph by data， or an algorithm， technology or capital advantage， or platform rules， among others.\" The addition of data-related monopolization in the Anti-Monopoly Law provides clearer guidelines for formulating and improving supporting laws and regulations.

The enactment and revision of supporting laws and regulations also play a complementary role in improving China's Anti-Monopoly Law and regulations， enabling China's Anti-Monopoly Law enforcement authorities to have a complete legal basis for data monopolization and to carry out timely and effective supervision. In fact， prior to the revised Anti-Monopoly Law， the Chinese legislature had imposed restrictions on an e-commerce business with dominant market position on account of its technological advantage， number of users， control of the relevant industries and other factors， may not abuse the dominant market position to exclude or restrict competition e-commerce data dominance in Articles 22 and 35 of the E-Commerce Law enacted in 2019， businesses are prohibited from abusing their dominant market position in e-commerce data by excluding or restricting competition. This includes factors such as the number of users， control of relevant industries， and other relevant considerations. In the same year， Parts II， IV， and V of the Guiding Opinions on Promoting the Healthy Development of the Platform Economy （2019） and Chapters II， III， and IV of the 'Guidelines' issued in 2021 provide relatively detailed provisions on monopoly agreements， abuse of dominant market position and operator concentration in the new context. These provisions have expanded the field of platform competition regulation for digital governance， and constitute the prototype of China's regulation of data-related monopoly behaviors， but the enforcement framework of the above laws and regulations is still based on the traditional concepts of \"monopoly agreement\"， \"dominant position\"， \"concentration of operators\" and so on.

In March 2022， Opinions of the CPC Central Committee and the State Council on Accelerating the Construction of a Unified National Market （2022） that \"Focusing on increasing anti-monopoly efforts， we will improve legal rules for identifying monopolies and a category-and class-based system for anti-monopoly review of concentrations between undertakings. We will address issues such as platform enterprises' monopoly of data to avoid eliminating and restricting competition by data， algorithms， technology， and other measures\". In addition to the counteracting effect on data abuse that can be reflected in economic laws， the rules about data-related monopolistic behaviors provided for in legal provisions on the rights of the Individual and property interest， such as Article 127 of the Civil Code， Article 45 of the Personal Information Protection Law and Article 51 of the Data Security Law. Although these provisions also have a certain value in terms of competitive activation， they have a weak directionality and are still to be harmonized in terms of application.

The Chinese government has earlier recognized that， in the context of the development of the digital economy， undertakings with data advantages， represented by digital platform enterprises， are more likely to engage in such behaviors that have eliminated or restricted competition. Therefore， Chinese market regulatory authorities have focused on platform enterprises， and while the Anti-Monopoly Law and other economic laws and regulations have increased the content of adapted data-related monopoly behaviors， they have also regulated these behaviors in non-economic laws and regulations. With the establishment of many laws and regulations， Chinese market regulatory authorities have gradually begun to strengthen regular and accurate supervision on \"data monopoly\".

2 China's Data Monopoly Supervision Status and Practice

2.1 Digital Platforms are Main Target for Supervision

The Organization for Economic Co-operation and Development （OECD） maintains that data-driven markets are more concentrated than others， and more susceptible to being monopolized[8]. In September 2020， the inspection team of the National People's Congress Standing Committee carried out by the implementation of the anti-unfair competition law， it was highlighted in the inspection report， pointed out that in recent years， Ali， Tencent and other digital enterprise mergers and acquisition are frequent， suffered from mergers and acquisitions of innovative small and medium-sized enterprises， although they do not reach the current standard of notification prescribed by the State Council and are not subject to the supervision of anti-monopoly law enforcement agencies， but many scholars argue that these concentrations between undertakings have produced a monopoly effect of restricting competition and inhibiting innovation[9]. Internet enterprises， especially digital platforms， have become the key target in China's data-related antitrust supervisory practice[10].

In fact， China has a large number of digital platform enterprises， whose industry scale has exceeded 50 trillion dollars as of 2022， and also solves 27% of China's employment population[11]. Some scholars assert that most of the major obstacles to the development of data industry have been removed on China， and the cost of data collection has been significantly reduced， especially with the development of Internet technology and the improvement of arithmetic power， all of which have greatly facilitated the excavation of the value of data， whose potential value can be fully utilized with the support of technology. Improper use of data not only poses a risk of damage to consumer rights， but also jeopardizes social governance and national security. The risk of data-related monopolization posed by digital platforms has already emerged during the development of the digital economy， and Chinese market regulatory authorities are facing unprecedented pressure to regulate data-related monopoly.

2.2 Data-Related Anti-Monopoly Supervisory Practices in China

Before the addition of data-related aspects to China's Antitrust Law and regulations， there were already mergers and acquisitions in China that were data-related and attracted widespread attention. In the case of the DiDi-Uber merger， Uber （China） sold its China business to Didi Chuxing （DiDi） for US$35 billion. DiDi which has more than 15 million drivers and 300 million registered users， the takeover， which solidified Didi's market dominance， prompted an investigation by the Chinese Ministry of Commerce that ultimately failed to find Didi in violation of any regulations， because the acquisition did not meet the relevant market turnover standards under China's existing antitrust laws. Many scholars think that the mergence may have established data barriers， abused data advantages and other behaviors that have the effect of excluding and restricting competition.

However， in China's regulatory practice， it is again true that platform operators use a large amount of concentrated data to gain a dominant position in the market[12]， and it is indeed an observable phenomenon， especially for operators to track users' preferences and daily lives in real time by providing them with free basic services， treating users' personal data as a key input variable， adjusting and optimizing their services in a timely manner， and providing a basis for merchants to place online targeted advertisements based on users' consumption portraits， so as to realize the digital industrialization， which has constituted the main profit model and competitive advantage of many digital platforms[13]. These phenomena are particularly evident in the series of cases handled by China's Anti-Monopoly law enforcement institutions， which has investigated and dealt with cases of abuse of dominant market positions， for example the Alibaba group required platform-based operators to choose \"one out of two\" and Meituan required platform-based operators to choose \"one out of two\"， as well as a number of cases of unlawful concentration of business operators. The case is particularly evident in the number of cases in which operators have on illegal concentration of undertakings in the field of platform economy.

While the crux of the matter for solving data-related monopoly lies in the existence or non-existence of data monopoly. In China's laws and regulations， the word 'data monopoly' is seldom explicitly mentioned， but rather expressed in terms of the use of data monopoly advantage， data advantage， and so on. On the one hand， due to the theoretical system involving data has not been fully established， and there is a great deal of controversy surrounding the data monopoly at the theory level， because some scholars argue that the data itself has a non-competitive， instantaneous and other characteristics are not sufficient to determine the existence of data monopoly; on the other hand， the data is difficult to constitute an essential facility， whether the access restrictions on the data constitutes an impenetrable barrier to entry into the market， or the data holding capacity of the market power. Therefore， it is difficult for data to constitute a necessary facility in the sense of monopoly， whether data access restrictions constitute an impenetrable market entry barrier， or whether data holdings can be equated with monopoly power[14].

2.3 Establishing Data-Specific Supervisory Measures

It is precisely because of the characteristics of data that the supervisory model for monopoly behavior involving data must be different from traditional regulation. Some scholars believe that data monopoly is essentially to seek competitive advantage through the difference in the volume of data calls and the difference in the generation of digital technology[15]. In respect of platform operators involving data monopoly， the root cause of the monopoly lies in the fact that the platform operators have collected a large amount of data far exceeding that of ordinary operators， and restricting other trading conditions by data， platform rules and other methods to eliminate and restrict market competition. However， the main questions are whether the data itself is non-exclusive and cannot be monopolized by other operators， whether the data itself is sufficient to constitute a market controlling force that restricts competition， and whether it is easy to understand data in isolation from the platform's economic structure of the platform and create a bias in understanding. Theoretically， the scale of data does not necessarily constitute dominant market positions， and it is necessary to examine the market power of operators based on their data advantages in the context of multiple dimensions， such as the value， type and validity of data.

In addition to Chinese market regulatory authorities regulating and supervising the competitive behavior of platform operators， China's anti-monopoly authorities also focus on industry supervisory to regulate the platform economy， such as the Cyberspace Administration of China， Ministry of Industry and Information Technology， Ministry of Transport and other "departments， which also regulate and supervise the characteristics of the industry， safety risks， and quality of services of the platform operators， for the purposes of promoting standardized， orderly， innovative and sound development of the platform economy， and safeguarding consumers' interests and public interests. During China's anti-monopoly supervisory practice， China's legislature will on the basis of the development status and characteristics of the platform economy， continuously strengthen and improve the regulation， and enhance the pertinence and scientificity of anti-monopoly law enforcement.

3 Practical Challenges in China's Data-Related Anti-Monopoly Supervision

3.1 Difficulty in Effectively Regulating Data-Related Monopoly Behaviors by Traditional Standards

Under the traditional anti-monopoly supervision model， for example， the standard of assessing market shares of operators in the relevant markets based on the proportions of trading amount seems to be not feasible in the digital economy. In the DiDi-Uber merger， it is not difficult to see that China's current Anti-Monopoly Law is difficult to effectively prevent digital platforms in possession of massive amounts of data to implement the concentration of undertakings and can not effectively regulate the possible existence of monopoly behavior. For example， in terms of analysis methods of internet-related market definition and abuse of dominant market position， Hypothetical Monopolist Testing （HMT） is a generally applicable analytical method that defines the relevant market. In practice， it is assumed that HMT can be conducted through methods such as Small but Significant and Non-transitory Increase in Price （SSNIP） or Small but Significant and Non-transitory Decrease in Quality （SSNDQ）. However， in judicial practice， market share in the platform economy is a relatively crude and potentially misleading indicator for evaluating dominant market position[16]. Its position and role in determining dominant market position must be determined based on the circumstances of specific cases.

Although the Guidelines of the Anti-Monopoly Commission of the State Council for Anti-Monopoly in the Field of Platform Economy and the Provisions on the Examination of Concentrations of Undertakings take into account the impact of the standards for declaration standards， proactive investigation， and remedies of concentration of undertakings on the unique characteristics of the platform economy， and affirm the role of data in the market competition， but the data concentration of operators is still lacking in targeted provisions， and the specific evaluation criteria of data monopoly are not clear. However， there is still a lack of targeted provisions on the issue of data concentration by operators， making it difficult to effectively restrict the concentration of undertakings of platform enterprises or enterprises with data as a core element that take advantage of data. The main reason why traditional anti-monopoly supervision methods are not compatible with data-related monopoly behaviors in the context of the development of the digital economy is that China's current standards are difficult to adapt to the exclusionary market competition effect brought about by the characteristics of data.

3.2 Difficulty in Realizing the Purpose of Supervision by Traditional Supervisory Measures

China's anti-monopoly institutions are still dominated by ex-post supervisions， such as administrative penalties， but some scholars believe that such penalties are not able to give deterrence to platform operators， for example， in the case of China's anti-monopoly authorities imposed a fine of more than 20 billions on Alibaba and Meituan for their 'choose one from two' monopolybehaviors， the market capitalization of two companies has not fallen but risen， "and the extent of the increase in their market capitalization is higher than the amount of the fines imposed by the anti-monopoly institutions. Therefore， it is difficult to effectively regulate data-related monopoly behaviors purely by ex-post regulations for antitrust regulation. Under such circumstances， moderate ex ante supervisory should be an important supplement， and eventually regulation should be carried out by a combination of ex ante and ex-post regulation. For example， the standards for declaration of concentration of undertakings do not match the development of the digital economy， and the lack of standards for specific evaluation contents is also a key factor leading to the lack of ex ante supervision， and also an important reason leading to the dominance of the relevant industry， which makes it difficult for other operators to enter the market， traditional supervisory means are powerless when it comes to monopoly regulation in new industries and markets.

3.3 Industry Supervision and Market Regulation Should be Cooperated

China's supervision of data-related competition conduct not only involves the participation of market regulators， but also involves the needs and development of the relevant industry based on the needs of the industry's development of intra-industry competition regulation[17]. For example， since July 2021， the Ministry of Industry and Information Technology initiated the issue of platform inter-connectivity， which later also affected the Chinese market regulatory authorities' attention to the refusing to deal with the other transactional parties without any justifiable cause or self-preferential based on the data. For example， the phenomenon of overlapping regulation involving industry regulators and market regulators also occurs in the online car-hailing industry and market， the Ministry of Transportation issued the Circular of the General Office of the Ministry of Transportation on Maintaining a Fair and Competitive Market Order and Accelerating the Conformity of Online Car-hailing in 2021 and the Work Plan to Reduce the Overcharging of Platform Enterprises for the Transportation Industry in 2023. In these two regulations also refer to antitrust regulation when they systematically regulate the online car-hailing market and multi-departmental supervision of data competition is also addressed in a significant policy document on promoting the development of the platform economy issued by the National Development and Reform Commission in January 2022， together with eight other ministries and commissions. This document aims to promote the development of the platform economy and emphasizes the importance of effective data competition oversight. However， multi-departmental supervision may lead to the reality of multi-sectoral intervention and the resulting risk of regulatory overlap or even conflict in China's anti-monopoly regulation of data. In practice， there have been cases in which online car-hailing platforms have been treated unfairly due to unclear setting of powers and responsibilities between different departments， so it is a challenge to set up the powers and responsibilities between departments so that they can better cooperate with each other[18].

3.4 The Relationship Between Data and Competition Becomes Ambiguous

The role of data in market competition is becoming more and more important， and with the continuous advancement of algorithms， powerful computers and other technologies， data plays different roles in different market competitions. For example， the emerging of technologies such as General Pre-trained Transformer （GPT）， which takes massive data as its core assets， has enhanced the role of data in the emerging digital economy market. In view of the role played by data in different industries and technologies， it is necessary to formulate appropriate regulations to regulate the anti-competitive effects that may arise. With respect to generative artificial intelligence， the Chinese government has formulated Interim Measures for the Administration of Generative Artificial Intelligence Services， which is the world's first regulation on Generative Artificial Intelligence， stating that \"...it is prohibited to carry out monopoly or unfair competition by taking advantage of algorithms， data， and platforms.\" Generative Artificial Intelligence technology on the data itself is extremely high training costs， and the role of data in such emerging technologies is even more critical， the data-related monopoly behaviors will directly influence the development of new technologies， so for the development of the data industry， but also to combine the data in the market competition elements to take targeted regulatory approach.

4 Emphasizing and Improving Data Monopoly Supervision.

4.1 Implementing Regularized， Precise and Agile Regulatory Mechanisms

The Chinese government has repeatedly emphasized the regular regulation of the digital economy， raised the level of regulation and supporting platform companies to lead development， create jobs， and better compete internationally. During the annual sessions of the National People's Congress （NPC） and the National Committee of the Chinese People's Political Consultative Conference （CPPCC） of the State Administration of Market Regulation （SAMR）， in 2023 Luo Wen， head of the State Administration for Market Regulation， said during an interview on the \"Ministers' Passage\" said \"we need to ensure clarity of rules and process for enforcement and inspections conducive to improve a business environment， and strengthen the regular supervision， especially in key areas such as the digital economy and livelihood protection， and strengthen agile supervision to help strengthen compliance management and provide assistance for enterprise development.\" Regular and agile supervision has become a regulatory measure adopted by China's anti-monopoly authorities to cope with the context of the digital economy development.

In the process of implementing regularized， precise and agile supervisions， firstly， antimonopoly supervision in the field of digital platform economy should be broadened， emphasizing the balance of multiple values and objectives， and paying special attention to innovation in data monopoly supervision. Secondly， antitrust supervisory measures should be innovated， and scientific and technological supervisory means should be introduced to promote compliance governance and precise regulation of anti-competitive risks of digital economy platform enterprises with scientific supervision， to promote the healthy development of the platform economy. Finally， the rule of platform classification and platform grading should be optimized， and the interconnection regulatory framework can be improved， focusing on perfecting the governmental supervisory system， supplemented by the construction of a diversified regulatory pattern， which will help data monopoly supervision.

4.2 Implementing Interdepartmental Comprehensive Supervision

As data has multiple attributes， the interests brought about by data-related monopoly behaviors are not only harmed by a fair competition， but also by the governance of data involving user data， personal information， and even public safety and national security， which requires interdepartmental comprehensive supervision. For example， Data Security Law， Personal Information Protection Law and other laws and regulations also contain provisions on the use of data advantages and platform advantages to implement monopolistic behavior. At the same time， combined with the multiple attributes of data， multi-dimensional and multi-level regulation also helps to clarify the theoretical basis of data， and perfecting the theoretical basis of data is a prerequisite for clarifying how to regulate data monopoly behavior. Taking ownership as an example， in the latitude of right ownership as a benchmark， it includes at least three categories of private， social and national， and the liquidity value can involve private interest， social interest and national interest; data also has a variety of states， which not only includes personal data. Meanwhile， industrial or commercial data， social data and other diversified sources of data based on the subject and function， but also includes the collection， processing and analysis of data， and other data related behaviors[19]. As a result， in terms of the multiple attributes of data， such as property attributes， personal attributes， sovereignty attributes， and national security attributes are all reflected in the data.

4.3 Improvement of the Basic Theoretical System of Data

According to the characters of data， it really could hardly constitute an element of monopoly， however the various and complicated monopoly behavior related data still requires stronger governance. In 2020， the Chinese government has explicitly stated that link anti-monopoly regulation to the regulation of data collection and use behaviors， especially in relation to innovations in the financial sector. The Chinese government's governance of data monopoly emphasizes more on governance at the source. The Chinese government has carried out exploratory regulation of collection， processing and analysis of data and other aspects， and the increased emphasis on governance at the source involving data-related monopoly behavior can be seen in the intensive introduction of laws such as the Cybersecurity Law， the Data Security Law， and the Personal Information Protection Law. It is worth noting that the theoretical construction of the data foundation in the current law is not sufficient， especially the provisions on the legal attributes of data are not clear[20]， which leads to the inability to fully realize the circulation and sharing of data as well as transactions， and ultimately the formation of data monopoly.

In 2023， the setting up of a National Data Administration（NDA） was proposed to advance the development of data-related fundamental institutions and marked a new stage in data protection. In response to data-related monopolization， both source governance and multi-governance have been implemented， and the relationship between data and enterprises has been adjusted at the source to break the data-related monopoly. On November 10， 2023， Liu Liehong， the head of NDA， publicly expressed for the first time the topics related to the construction of the basic systems of data， and discussed the data property rights mechanism， the data circulation and trading system and the establishment of data infrastructure and other areas. The NDA， by strengthening the construction and improvement of the theoretical system of data foundation， is an important initiative to solve the problem of data anti-monopoly regulation and a prerequisite for the construction of data infrastructure.

Improving the theory of data can mainly focus on three aspects as follow. First， the data property rights system should be clarified to form the interaction between multiple subjects of data， thereby reducing the institutional cost of data transactions and promoting data circulation. Second， the protection system for data property rights should be improved to enhance the risk control capability of the data factor market. Third， precautionary supervisory measures should be taken to build a multi-law cooperative system with the antitrust law at its core， and fully utilizing the role of market-based governance systems and avoiding excessive supervision.

4.4 Strengthen the Construction of Data Infrastructure

As mentioned above， the establishment and development of data infrastructure can help address the issue of data antitrust regulation. In the last few days， on November 25， Liu Liehong said at the Global Data Ecosystem Conference 2023 that the NDA will focus on playing the role of multiplier effects of data elements and explore the implementation of a \"Data Element X\" initiative collaborated with relevant departments. The action is intended to accelerate the development and utilization of data in various industries and fields， promote the combination of data elements with other elements， find the \"optimal solution\" for resource allocation， break through output boundaries， create new industries and business models， and achieve a multiplier effect driving economic development.

The fact that the NDA has been organized with such urgency to build the basic systems of data is a response to the problematic nature of data anti-monopoly supervision. In addition， the Chinese government is also improving the data exchange market[21]， data registration system， trading system and other infrastructures to strengthen data circulation and promote data sharing， because the development of data circulation can help to break the monopoly of data by digital platforms， especially for the market where data and holdings are the core competitive factors and data is used as a market barrier， sharing is important to promote competition and break monopoly. Sharing is important for promoting competition and breaking monopolies， especially in markets where data and holdings are the core competitive elements and where data is a market barriers[22].

5 Conclusion

With the development of the digital economy， the data-related monopoly behavior have attracted the attention of various countries in the world， and the data-centered digital platform has been subjected to anti-monopoly investigation repeatedly， and the academic community has determined that the data-related monopoly is still have stirred controversy. As data is the most important production factor in the digital economy， the regulation of monopoly behavior derived from it must comply with the basic development law and characteristics of digital industry. At present， China's main regulatory model is to regulate the competitive behavior that may be brought about by the development of the digital economy on the premise of promoting the development of the digital economy and incentivizing development of the data industry under the premise of safety. Regulatory means in countries around the world are more focused on the impact on the overall market than on the structure of specific behaviors， although there are differences in the regulation of monopoly standards[23]. The same is true for the regulation of data-related monopoly behavior.

Compared with China， the European Union （EU） has adopted a more cautious attitude and has formulated a more detailed bill to regulate related monopolistic behavior. The EU's General Data Protection Regulation. The General Data Protection Regulation （GDPR） strengthens individuals' fundamental rights in the digital age and facilitate business by clarifying rules for companies and public bodies in the digital single market. The Digital Markets Act and the Digital Services Act provide more comprehensive and detailed regulations on data sharing， data transactions and the regulation of digital enterprises in the digital economy. The European Commission designated Alphabet， Amazon， Apple， ByteDance， and other six tech giants as \"gatekeepers\" under the Digital Markets Act， but such strict regulatory means seem to target only non-domestic companies， restricting the development of tech companies outside of the EU， while creating a space for the growth of domestic platform companies. On the one hand， such a regulatory approach has been highly politicized and discriminates against large technology companies in the normal market competition; on the other hand， such strict ex ante regulation is more prone to regulatory fallacies and selective targeting of offshore companies to the extent that it may lead to a scramble for countries to follow suit， resulting in higher market barriers between countries.

Unlike the EU's consistently strict regulatory approach， the U.S. antitrust regulation of digital economy platform enterprises has shifted from lax to prudent and has gradually begun to strengthen the regulation of digital economy platforms. As the U.S. has many world-renowned platform enterprises， the U.S. antitrust practice against digital platform giants is more often reflected in antitrust litigation， in which data-related and more classic cases include United States v. Microsoft Corp， hiQ Labs v. LinkedIn， and Federal Trade Commission v. Meta Platforms， Inc， . which provides guidelines for the competitive behavior of digital economy platform enterprises with cases. In addition， the U.S. has continuously optimized its antitrust regulatory means for digital economy platforms by improving the platform antitrust law and promoting the reform of platform antitrust enforcement agencies， as well as considering data factors and introducing the concept of \"covered platforms\".

In general， compared with the data-related anti-monopoly regulatory practices of the European Union and the United States， China is continuously improving its existing antitrust laws and regulations， and continuously incorporating data elements into antitrust regulation. Although there are still controversies over whether and how data can directly form a monopoly， and there is no unanimous opinion on the concept of \"data monopoly\" either in theory or practice， "China's anti-monopoly authorities have formulated a series of laws and regulations on data-related monopoly behavior to regulate potential anti-competitive behavior. It is worth noting that China's existing regulatory tools are not sufficient to fully regulate data-related monopolies， or even accurately identify related monopolies， and it is difficult to match the new monopoly situation spawned by the development of the digital economy. However， China's anti-monopoly authorities have introduced a series of means that are closely aligned with their practices in response to the characteristics of the data elements and competitive behaviors， and have enriched and perfected the anti-monopoly regularization regulatory means by continuously enriching anti-monopoly regulatory tools and implementation methods， strengthening and refining anti-monopoly prior review in the platform economy， helping data enterprises to do a good job of complying with the regulations， and creating a full-cycle， full-chain regulatory mechanism for data competition， so as to achieve the ultimate goal of prospering the data industry market and protecting fair competition in the market.

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我國數據反壟斷規制實踐及完善

陳 " 兵，劉永集

（南開大學 法學院，天津 300350）

摘 " "要：當前，數據要素已成為與土地、勞動力、資本、技術并列的生產要素，其不僅融入生產生活的方方面面，也關系到以數據為核心要素的數字經濟市場公平競爭環境的維系與發展。在實踐中，我國已在立法層面針對數據行為制定了相關條款，且在執法層面也針對數據行為，特別是數據壟斷進行了有力監管。但是，伴隨以互聯網平臺為代表商業組織體和生產組織機制的數字經濟新業態、新模式、新產業不斷發展，以數據為要素形成的壟斷行為變得多樣且隱蔽，對以數據為核心要素的壟斷行為進行有效監管仍是難題。究其原因主要在于數據相關的基礎理論體系尚待健全、數據的法律屬性尚未明晰以及相關數據基礎設施不完善。面對數字經濟發展中“三新”經濟的不斷涌現，亟需對數據壟斷實行有效的常態化敏捷監管，包括但不限于行業監管與市場監管相結合、跨部門綜合監管以及不斷完善基礎配套措施等，形成監管合力。此外，對數據要素的基礎理論、數據流通交易、數據基礎設施等領域的基礎制度建構也應加快推進。

關鍵詞：數據要素；反壟斷規制；數字經濟；互聯網平臺經濟領域；監管合力