数字经济时代平台秩序的刑法保护限度

Limits of Criminal Law Protection for Platform Order in the Digital Economy Era

摘要:

平台经济是数字经济的最活跃形态，在长期_“弱监管、强保护_”的数字市场中，平台制定的自我管理规则率先承担了大量市场管理功能，进而形成_“平台秩序_”。大平台的运行秩序带有市场经济秩序、社会管理秩序等公共秩序的表象，对平台秩序的底层权力关系认识不足，造成了刑法对干扰平台秩序行为的入罪过度。大平台依靠数字技术建立数据权力，趋向排斥竞争的_“垄断化秩序_”、支配用户权利行使的_“准社会秩序_”,但平台秩序的本质是平台营利的稳定性，它缺少社会秩序法益的可保护性。对于干扰平台秩序的行为，应区分平台秩序关联的不同法益而予以入罪限缩：对破坏网络产品或服务正常运行的行为，优先由《中华人民共和国反不正当竞争法》评价；对_“利用平台规则_”侵害平台财产法益的行为，回归《中华人民共和国民法典》调整；对侵害平台或平台内经营者、用户财产利益的行为，区分适用财产犯罪和计算机数据犯罪。

Abstract:

The platform economy model is the most active form of the digital economy.Compared with the traditional pipeline economy， its most notable characteristic is the efficient interaction mode：the network platform is no longer an ordinary intermediary that simply matches supply and demand but controls each user and even dominates the relevant market. In this regard，Chinese government has adopted the model of _“ weak supervision and strong protection_” . Before administrative management，the platform management norms formulated by online platforms ，especially large platforms，took the lead in undertaking market management functions， and these management norms formed the platform order. Due to the market influence of the platform，the platform order has the appearance of_“ public order_”，such as market economic order and social management order， and once the platform order is disrupted，it is likely to have a negative impact on all participants. There are two ways to handle the legal protection of platform order in practice：one is to maintain the order of market competition through market regulation laws such as the Anti-Unfair Competition Law. The other is to deal with it through the Criminal Law on the grounds of maintaining public order. At the level of the Anti-Unfair Competition Law， courts often use the traditional tort law model to define unfair competition， directly treating competitive interests as the _“property_” of the platform and _“rightizing_” the competitive advantages of a particular platform， resulting in excessive protection of the platform order. The misinterpretation of competing interests has further led to the excessive protection of the criminal law the simple violation of platform rules is directly recognized as a crime that infringes on the legal interests of property or even public order. However， digital economy platforms have never been for the purpose of public welfare but use the power of platform data to maximize economic interests， and the dominant platform will inevitably reject competition， and the platform order tends to monopolize the order. At the same time， the platform relies on data power to break the traditional _“power-right_” binary structure and obtain a status similar to that of a public power subject. But it cannot be acknowledged that platform order is equivalent to or concealed by social order if platform power is understood to be distinct from political power. In the digital market attention should be paid to the underlying logic of the platform economy and its market competition limiting power and increasing responsibility for platforms. We should respect the platform?s obligation to promote competition tolerate the interference of the platform order and adjust the existing concept of platform order protection in accordance with the purpose of protecting legal interests that the civil law economic law and criminal law each emphasize. First，the Anti-Unfair Competition Law gives priority to the evaluation of acts that disrupt the normal operation of online products or services. Secondly，the use of platform rules to infringe on the legal interests of platform property should return to the scope of adjustment of the Civil Code. Finally，for acts that infringe on the property interests of the platform or its operators and users，we should distinguish between property crimes and computer data crimes. Violations of the order of the platform should not be directly used as the basis for criminal liability， avoiding the use of criminal law as a tool for maintaining the capital advantage of the platform.