"3Q War" supreme Law trial second instance may be upheld

Absrtact: 3Q World War the highest law trial lasted 3 years, the continuous attention of the 3Q war and then the waves, Qihoo 360 v. Tencent Monopoly case yesterday in the Supreme People's Court second trial. The case is not only the first case of the Supreme People's Court in the 6-year trial of anti-monopoly law

"3Q War" supreme Law trial

For 3 years, continued to be the focus of the "3Q War" again waves, Qihoo 360 v. Tencent Monopoly case yesterday in the Supreme People's Court second trial. The case was not only the first case of Internet antitrust trial by the Supreme People's Court in the 6 years of anti-monopoly law, but also the 150 million yuan compensation proposed by Qihoo 360, which is the largest monopoly case in China's internet history.

360 appeal

Request for revocation of a judgment or revision of the first instance

Nearly three years, the 3Q war intensified, since 2010 Chinese New Year Tencent released QQ doctor and upgraded to QQ computer Butler, and 360 security guards formed a direct competition relationship, the two sides of the war will be officially launched. From Tencent v. 360 unfair competition, to 360 v. Tencent infringement reputation right, and then to Tencent Counterclaim 360, it became an internet drama.

Last November, 360 filed a lawsuit against the Guangdong High Court, claiming that Tencent abused its market dominance in instant messaging software and service-related markets and constituted a monopoly, requesting Tencent to compensate for its economic loss of 150 million yuan. Guangdong High Court dismissed all the claims of Qihoo company, then the Qihoo appealed to the Supreme People's Court. In the second instance of yesterday, 360 made several appeal requests: to revoke the judgment of the first instance, to reopen the retrial or to alter the law; To support the first instance appeal, that is, to decree Tencent to immediately stop abusing the market dominance of the monopoly of civil tort, including but not limited to the limited QQ software users and In the QQ software bundled tying the security software products and other acts, compensation for economic losses of 150 million yuan, while apology.

A number of decisions against the first instance

360 indicates that the judgment of the first instance does not identify the "relevant regional market", the basic facts of the case are not clear; at the same time, there are errors in the analysis of the hypothetical monopolist test ("Ssnip test") method, the relevant regional market and Tencent's no dominant position in the relevant market.

360, Tencent in the relevant market share of more than One-second, it should be presumed to have a dominant market position; Tencent will QQ software Butler bundled with Instant messaging software, and to upgrade the name of QQ software Butler installed QQ doctor, should be identified as constituting tying. This behavior undermines competition in the security management software market and does no good to consumers. And Tencent's "two choose one" limit the transaction behavior, forcing users to stop using and uninstall 360 software, otherwise it will stop providing QQ and related software services, resulting in 360 of the software products by the user large unload, delete, to 360 caused huge economic losses, should assume the responsibility for compensation.

The focus of the five major disputes

In the trial, the judge divided the dispute between the two sides into five controversies and 22 questions, and then expounded and debated each side.

The controversy: How to define the relevant market

Issue two: Whether the appellant has market dominance

Three issues: whether the appellant constitutes an abuse of the dominant position of the market as prohibited by the Antimonopoly law

Four points of contention: the responsibility of civil liability

Dispute five: first Instance judgment whether the procedure is illegal

Trial scene

Mutual questioning of expert witnesses

In the trial, 360 and Tencent also applied for expert witnesses respectively to testify. The result is that the other party will challenge the identity of the witness, regardless of which party's expert witness appears. The judge then had to verify and enquire in detail about the identity, resume and work of the witness.

Tencent believes that 360 of the two expert witnesses hired by ――CLA, a senior advisor to David, did not have the qualifications as an expert witness, and made a PPT for this purpose. Then, after a detailed inquiry into David's identity and professional standards, the presiding judge concluded that the letter of the Human resources Department of the Fair Trade Bureau in the Court of First Instance had confirmed its identity. With regard to David's professional standards and qualifications, his views can serve as a reference for the court, given his educational background and experience. The next round to Tencent's two domestic expert witnesses to the court, 360 also questioned.

War burning

The Court of Confrontation.

The court was in fierce confrontation and the court was still full of gunpowder. Yesterday, Qihoo 360 open an open letter to the public, content directed to Tencent: "China's internet surface is innovative and dynamic industry, in fact, the internet giant monopoly of the market is far beyond the financial, telecommunications, oil, electricity, such as the old monopoly industry." Tencent Company's market capitalisation has exceeded the total market value of more than 40 Chinese internet listed companies, but a millions, the giant monopoly has made China's internet industry desertification. ”

Tencent also responded with a clear response, saying that Tencent's income to third party partners has reached 3 billion yuan only this year. "Do business is not more than whose voice is big, say more than do more, exactly who in the world of entrepreneurs dream, who kills the dream of entrepreneurs, everyone's heart naturally has a steelyard, hope more and more entrepreneurs through the platform of Tencent to realize their own entrepreneurial ' Chinese Dream '." ”

Lawyer forecast

Second instance may be upheld.

For yesterday's "3Q War", Chen Haixin, a partner at the Pacific law firm, predicted the results of the second instance of the Supreme Court may be basically consistent with the first instance, but may correct the understanding of individual concepts in the first instance judgment, for example, by defining the "relevant geographical market" as "the Chinese market" rather than the "global market"; for "two election one", It may be considered to be an independent remedy for the avoidance of infringement of commercial interests and user information security. "After the introduction of anti-monopoly law, although the abuse of market dominance of the behavior and consequences of the law has been defined, but the judicial practice, can refer to the application of practical cases is still not much." However, website operators can actively defend their rights according to law is the progress of social legal system, but also the development of the Internet industry standardization milestone. ”

It is reported that the Court will continue today in the Supreme People's Court.

Morning News reporter Pengxiaofi

Dispute history

2010

Before and after the Chinese New Year Tencent released QQ doctor, and upgraded to QQ computer housekeeper, with 360 security guards launched direct competition. ("3Q War")

September 27 360 Push Privacy protector to monitor QQ

October 14 Tencent announced a formal indictment of 360 unfair competition, opened up three years of litigation curtain

October 27 Baidu, Tencent and other appeals industry does not have any form of cooperation with 360

November 3 Tencent announced that it will be equipped with 360 of software on the computer to stop running QQ, users face "two select one"

November 21 Ministry of Communications criticized Qihoo 360 and Tencent, two companies immediately apologized and restored software compatibility

November 24 360 sues Tencent for infringement of reputation right

2012

April 360 to the Guangdong High Court against Tencent's antitrust lawsuit; Tencent counterclaim 360 "buckle Bodyguard" unfair competition

2013

April 25 Guangdong High courtyard first trial verdict, Qihoo 360 constituted unfair competition, and compensation Tencent 5 million yuan. Qihoo 360 appealed to the Supreme People's Court