关键词: 关键词： 剥削性滥用, 非价格型剥削性滥用, 违法性, 用户（消费者）利益

Abstract: Despite its great success, the Internet economy seems to have been under the spell of “choosing one between the two” in the past ten years, as is evidenced in events ranging from the “3Q” warfare at the end of 2010 to the “Jingdong vs. Taobao” war at the end of 2019. How to judge the business dealers’ illegality of the exploitative abuse of their market dominant position has always been a disturbance to the development of the Internet industry and the governance of the Internet market. Although the provisions of Article 17(1)(5) of the current AntiMonopoly Law of China may provide a legal basis for regulating nonprice means that harm the interests of consumers, however, a general benchmark for the judgment of illegality has not been formed in legal practice. Therefore, it is suggested to learn from extraterritorial experience and specify “obvious” and “unfair” provisions while analyzing the general benchmark for illegality judgment. To judge whether it is “obvious”, it is essential to take into account the factors such as the nature of goods or services, the time, times and duration of the conduct, the scope of the abused consumers, other dealers’ trade terms in similar markets, the business dealers’ change in costs after the alteration of trade terms and the differences between prices and economic value of concerned goods or services. To judge whether it is “unfair”, it is essential to consider whether the purpose is to chase excessive monopoly profits, the nature of the conduct, duration of the conduct, market structure, market characteristics, and so on. Only in this way and based on individual case analysis, can we improve the predictability and stability of the legal suitability.

Key words: Key words： exploitative abuse, nonprice exploitative abuse, illegality, interests of users (consumers)