Wal-Mart Makes "Commercial Decision"
"Wal-Mart will not allow Alipay to pay the bill!" On the evening of March 23, a consumer in Chongqing broke the news of a local Wal-Mart store on the Weibo to suspend the use of Alipay.
The first evidence to support this news is the store's publicity on a mobile phone posted by the consumer: "Since March 15, 2018, our payment methods are WeChat payment, UnionPay card, credit card, prepaid card, and cash ( Suspend the use of Alipay. At the same time, in order to give back to the general consumers, we will start the WeChat payment reduction event from March 15th to April 1st, 2018. Details of the specific events will be announced in the store.” Then, similar notices. Consumers' fingertips in Chengdu, Sichuan, and Kunming, Yunnan were forwarded to each other.
The relevant person in charge of the Wal-Mart Yunnan region subsequently confirmed: “On March 15, all Walmart stores in Kunming (15 in total) have been suspended from Alipay payments, and 91 stores across the entire West China region (including Yunnan, Guizhou, Sichuan, and Chongqing). Also temporarily stopped accepting Alipay payments."
After that, Wal-Mart China officially responded to media and consumers, saying that from March 15, 2018, Wal-Mart West China and WeChat reached a deep partnership, will launch exclusive deals, and conduct more accurate marketing cooperation based on big data analysis. At the same time, on March 15th, Wal-Mart temporarily stopped accepting Alipay payments in 91 stores in the West China District. “This is a commercial decision. Wal-Mart will review the business from time to time.”
Wal-Mart announced the suspension of accepting payments from Alipay in some stores, prompting onlookers, "injury of consumer rights," "alleged monopolies," "this is unfair competition," and other voices have emerged one after another. What is the nature of such a "business decision"? Does it involve infringement? Can you be held accountable for legal liability? Around the relevant issues, the reporter interviewed relevant persons and legal experts.
Belong to the scope of self-management
In the face of this “commercial decision” of Wal-Mart, on the evening of March 23, the WeChat official gave a positive response: “We respect Wal-Mart’s business choices.” March 26 Sina Weibo Certification “TencentZhang Jun, director of public relations, said: "The realization of any third-party mobile payment is still in the process of communicating with merchants and promoting access. The initiative to access or not is basically in the hands of businesses and third-party payment. For businesses, it is just a choice, not a must. "What WeChat pays to do is to provide businesses with a series of digital tools that do not capture business data and respect commercial privacy so as to gain the trust and recognition of our partners." ”
On this matter, the reporter contacted the relevant person in charge of Ant Financial (Alipay), who stated that he did not respond to the incident.
And many consumers feel the inconvenience of paying, even Tucao: "Actually can not use Alipay, hard to choose a bunch of things can not pay the results" "even the pancake fruit can be used Alipay's era, so a large supermarket can not "...
Netizen OnTheWay believes this is the result of Wal-Mart's "Team" Tencent system. Some media subsequently disclosed the equity relationship between related companies: “In June 2016, Wal-Mart and Jingdong announced a deep strategic cooperation. At present, Wal-Mart is Jingdong’s third largest shareholder, holding 12.1% of shares. At the same time, Tencent, which owns WeChat payment, is JD’s largest shareholder, holding 21.25% of the company’s shares. Since taking stake in Jingdong, Walmart has become a member of Tencent’s new retail camp.”
“A lot of people are wondering if Tencent has played a role in the future. We think that each business has its own choice in choosing the payment method for the customer. This is the scope of the business.” Liu Xiaochun, executive director of the Internet Legal Research Center at the Chinese Academy of Social Sciences University, told reporters.
In response, Prof. Liu Junhai, Director of the Commercial Law Research Institute of Renmin University of China, acknowledged that “businesses do have freedom of business, they can choose to cooperate with Ali, and they can also choose to cooperate with Tencent because the law has no prohibition. Unless, it belongs to the market. People with monopoly status and abuse of monopoly advantages. Both requirements are at the same time."
It is too early to suspect the monopoly conclusion
So, does Wal-Mart have a monopoly position and abuse its monopoly advantage?
"Wal-Mart is recognized as a business giant. Wal-Mart is an industry giant in Kunming's shopping supermarkets. Due to brands, suppliers and other factors, Wal-Mart has a considerable market monopoly in the retail channel, so this use of its market monopoly on a certain kind of The act of restricting the trading conditions of payment methods constitutes an alleged abuse of market dominance, according to expert analysis.
Liu Xiaochun holds the opposite view. She believes that Wal-Mart’s refusal of Alipay’s behavior does not result in the infringement of Alipay’s freedom to participate in market competition, nor does it damage the entire competitive order. Therefore, “In my opinion, Wal-Mart’s stores are far from the market’s disposal.”
The reporter’s inspection of the anti-monopoly law found that for what kind of operators have a “dominant market position”, Article 17 of the Anti-Monopoly Law defines it as follows: “Market dominance in this Law means that the operator has a relevant market. Ability to control the price, quantity, or other trading conditions of a commodity, or market position that can hinder or affect the ability of other operators to enter the relevant market." Article 18 states that "the determination that a business operator has a dominant market position should be based on the following factors: (1) The market share of the operator in the relevant market and the competition conditions in the relevant market; (2) The ability of the operator to control the sales market or the raw material procurement market; (iii) The financial and technical conditions of the operator; (4) Other operations The degree of reliance on the operator for the transaction; (5) the degree of difficulty of other operators entering the relevant market; (6) other factors related to the determination of the dominant market position of the operator. "Article 19 states: Under one of the following circumstances, it may be presumed that the operator has a dominant market position: (1) An operator is in the relevant city The market share of the market reached one-half; (b) The market share of the two operators in the relevant market reached two-thirds of the total; (iii) The market share of the three operators in the relevant market reached a total of three-quarters. of."
In this regard, Liu Junhai said that advocating that an enterprise is suspected of abusing its dominant market position depends on the true data of its market share. It needs to provide sufficient evidence and cannot make any assertions.
This view has also been recognized by other experts. An anti-monopoly law expert who has long studied the issue of competition among Internet companies told reporters that according to current facts, Wal-Mart’s existing cooperation with Alipay prior to the suspension of its relationship was a refusal to deal with anti-monopoly issues. Article 3 of the first paragraph of Article 17 of the Act, that is, "operators with market dominance refused to conduct transactions with counterparties without proper reasons". So is Wal-Mart having a dominant market position? If so, where is it? For traditional companies, better judgment is to look at market share. This is related to the degree of marketization. Marketization is equivalent to the denominator. The greater the marketization, the smaller the market share. Well, what kind of market Wal-Mart belongs to, the classification is different, and the market share calculation results are different. Is it a retail commodity for daily use or is it a broader category? Because the current definition is not clear, the data is incomplete, so this market share is also uncertain.
For some netizens, Wal-Mart’s behavior also involves the issue of unfair competition law. The expert believes that “the unfair competition law does not specify this, and this is not an unfair competition law.”
Regarding whether Wal-Mart’s practice is an exclusive transaction, the expert pointed out that “Exclusive transactions are exclusive transactions. I don’t trade with any party except one. Wal-Mart said that Alipay cannot, WeChat can but does not exclude other moves. Payment method, so it cannot be defined that Wal-Mart is an exclusive transaction."
Whether the breach is not clear
So, does Wal-Mart's behavior constitute a breach of contract? According to lawyer Qiu Baochang, director of the Beijing Municipal Lawyers Association’s Consumer Rights Legal Affairs Professional Committee, companies or businesses can choose to operate independently, but they cannot violate the contract law and consumer rights protection laws. "Analyzing from a legal point of view, Wal-Mart's decision may first have a breach of contract. Wal-Mart stores in West China and Alipay have established a cooperative relationship and a contractual relationship has formed between the two parties."
In this regard, Dr. Yue Yepeng, associate professor at the School of Grammar and Law of Beijing University of Chemical Technology, analyzed that the two parties had reached a written agreement between the Alipay and Wal-Mart. The disabling of Alipay payment this time is a breach of contract. It depends on the specific provisions of the agreement between the two parties. If both parties explicitly agreed that the cooperation period is after March 15, 2018, then Wal-Mart’s behavior is a breach of contract; if the agreement specifies that the cooperation period between the parties will reach March 14, then Wal-Mart will cease to use it on March 15 and it will not exist. Breach of contract; if the parties do not explicitly stipulate the duration of the cooperation in the agreement, then either party can terminate the cooperation at any time.
If it is a breach of contract, how to pursue the liability for breach of contract? Yue Yepeng said that the two parties’ contract between Wal-Mart and Alipay has nothing to do with consumers. According to the contract law, only Alipay has the right to demand accountability.
Consumers' right to choice should be respected
The interviewed experts generally believe that self-management is the right of the business, but consumers' right to choose should be respected.
Qiu Baochang pointed out: “Before consumers could use cash, Alipay, WeChat, etc. to pay at Wal-Mart stores, and the payment habits have already been developed, and now suddenly announced that Alipay cannot be used. This is a behavior for consumers who are used to paying with Alipay. They have been deprived of their right to freely choose payment methods, and consumers can safeguard their rights in accordance with the law."
Dong Dengxin, director of the Institute of Finance at Wuhan University of Science and Technology, said that in China, payment methods can be diversified, businesses should be inclusive, give consumers the freedom to choose payment tools, and should not reject certain types of payment instruments.
Liu Xiaochun also believes that the behavior of merchants rejecting a certain payment method is negative in terms of consumers’ choices and their own reputation. By relying on the way of blocking and defending against competitors, in fact, in public opinion, the image will be reduced.
A senior industry source stated that for Alipay and WeChat, everyone is actually a “national” application, which represents the growth and progress of the Internet in China. There is no need for either or both. Normally, any business will provide users with as many options as possible to better meet the user's needs for their own first purpose, the user chooses what kind of payment method to use.
Liu Junhai believes that the payment brand in China has achieved remarkable results and is positive energy. It is necessary to encourage fair competition, create more payment platforms, maximize consumer welfare, enhance consumers' sense of well-being, sense of acquisition, and sense of security, and create an honest, fair, and inclusive payment market ecosystem. For the future development trend, Liu Junhai told reporters that on March 28, 2018, the People's Bank of China held the 2018 national monetary gold and silver work video and telephone conference, referring to “further increase reform and innovation, and solidly promote the central bank’s digital currency R&D”. With the central bank’s digital currency, consumers can purchase electronic payments without cash. This will fundamentally solve the problem.access: