Recently, a "monopoly case involving second-hand car insurance data transactions" in the public data field has attracted industry attention. Red Star News reporter learned that Shanghai Yuhan Automobile Technology Co., Ltd. (hereinafter referred to as Shanghai Yuhan Company), which is engaged in second-hand car transactions, filed a lawsuit against Beijing Yuchexing Information Technology Co., Ltd. (hereinafter referred to as Beijing Yuchexing Company), claiming that the latter abused the market dominance of domestic second-hand car insurance data online query services and committed unfair high prices and differentiated treatment.
It is understood that Beijing and Car Store are the operators of the used car information service platform "Lemon Check". Recently, the case has been officially accepted by the Beijing Intellectual Property Court, and the cause is a dispute over abuse of market dominance.
↑Beijing Intellectual Property Court Acceptance Notice
By querying the China Judgment Document Network and publicly disclosed information, there are currently no cases in China involving the public data field that filed antitrust lawsuits. The plaintiff told the Red Star News reporter that the "Lemon Check" data comes from the public data of auto insurance information across the country and needs to be in line with the market-oriented operation of public data. The relevant person in charge of
"Lemon Check" said that the company had received a letter from the court on September 9 and is currently actively responding to the lawsuit.
used car dealers sued:
implements unfair high prices and differential treatment
car insurance data query platform suspected of monopolizing
day eye check shows that the plaintiff Shanghai Yuhan Company's main business scope includes used car sales, and generally obtains auto insurance information through the used car information service platform. The complaint states that the defendant Beijing and the Car Store Company operated by the "Lemon Check" was cooperated with the national auto insurance information platform operated by Bank Insurance and Credit through China Automobile Distribution Association (CADA) to obtain auto insurance data. As an industry-based public data platform, the national auto insurance information platform has initially established a mechanism for sharing and interaction of auto insurance information, and has not yet directly provided market-oriented auto insurance data query services.
↑ "Lemon Check" official website shows that its operating company is Beijing and car dealer company
As of November 2021, less than a year after the "Lemon Check" platform was launched, more than 7,000 car dealer groups, used car trading markets, used car dealers and 4S stores have signed contracts to use it. "Lemon Check" charges a single query, non-members are 32 yuan per person, and membership prices are 28 yuan per person.
Red Star News reporter noticed that a publicly disclosed document also shows that its data "all come from the China Bank Insurance Information Technology Platform, including the underwriting and claims data of various domestic insurance companies, and combined with the data related to the second-hand car industry of the association."
public information shows that the operating company of the national auto insurance information platform is China Bank Insurance Information Technology Management Co., Ltd. (hereinafter referred to as Bank Insurance Information Technology Management Co., Ltd.). According to the official website of Bank Insurance Credit, the national auto insurance information platform is a comprehensive service platform that integrates the full process management of auto insurance underwriting and claims, and is connected with relevant government departments such as public security, traffic management, transportation, taxation, and related information institutions such as the automobile industry chain and the Internet of Vehicles, providing a comprehensive service platform for comprehensive information sharing services across companies and across industries. Bank-insurance credit is directly managed by China Banking and Insurance Regulatory Commission , and is mainly responsible for the construction and operation of a nationwide unified banking and insurance information sharing system.
↑Civil Complaint
Plaintiff believes that the data of the national auto insurance information platform falls within the scope of public data. The flow of public data for auto insurance is the general trend of future strategic development. Through flow, huge social and commercial value can be exerted, "but it needs to comply with certain mobility principles."
"A company has obtained public data and is authorized to conduct market-oriented operations. It has an absolute market share and has the dominant market position recognized by Anti-Monopoly Law . It needs to abide by the Anti-Monopoly Law. It cannot refuse transactions, cannot be treated differently, and cannot be unfairly high prices. Instead, it should be a small profit, cost price or government guidance price." The plaintiff said that taking the facial recognition system of the Ministry of Public Security as an example, various market-oriented Internet companies and major banks will cooperate with the facial recognition system, but only charge a few cents or a lower price at a time.
The plaintiff introduced to the Red Star News reporter that "Lemon Check" can easily obtain public data of the national auto insurance information platform, covering the motor vehicle insurance data of 68 auto insurance companies across the country. It has natural advantages in the quantity and quality of data, and it is difficult for other operators to enter the relevant market. The plaintiff believes that second-hand car dealers have a high degree of dependence on "lemon check" and have formed a de facto market dominance. "Unlike Lemon Check, some information platforms that obtain data from commercialization channels obtain data through cooperation with local insurance companies and automobile companies. Therefore, there is no authoritative and accurate lemon Check, and the cost is also higher."
Based on this, the plaintiff believes that the defendant's behavior of differential treatment for members and non-members of the China Automobile Dealers Association and the unfair and high prices for auto insurance data query services using public data have been suspected of abuse of market dominance, which is a behavior of abuse of market dominance prohibited by the Anti-Monopoly Law. The plaintiff said, "The use of public data exists in many fields, but this is the first time a lawsuit has occurred. I hope that through this lawsuit, the judicial system will set some rules for the market-oriented operation of public data." The defendant
responded:
has received a letter from the court
is actively preparing to respond to the lawsuit
By querying the official website of the China Automobile Dealers Association, a reporter from Red Star News learned that the full name of "Lemon Check" is "CADA Lemon Check" is "China Automobile Dealers Association's second-hand car information service platform CADA Lemon Check". It is led by the China Automobile Dealers Association and fully recommended. It was officially released on November 18, 2020.
public information shows that the China Automobile Distribution Association is the only national-level community legal person organization registered with the Ministry of Civil Affairs. Its official website "Cada Lemon Check officially released CADA Cloud Data Gathering" introduced that, before, "there is no official platform in China that can accurately query second-hand car accident information." Lemon Check is "China's leading second-hand car information service platform. This platform can accurately provide consumers with the concerns about whether used cars have been insured during the insurance period, specific accident conditions and repair parts, and provide consumers with a reliable basis for buying used cars with confidence."
↑CADA official website screenshot
According to the article, the audience of the platform includes second-hand car-related member companies of the China Automobile Dealer Association, including automobile dealer groups, used car trading markets, 4S stores and used car dealers, etc. The article introduces that the naming idea of "Lemon Check" comes from the concept of lemon car . "Since lemon is a fruit with a golden appearance and a sour flesh on the inside, people likened cars that are difficult to find defects from the appearance to lemon cars. When consumers buy a problematic car, it is like eating a lemon, which is so sour and hard to swallow. CADA Lemon Check is to help consumers reveal the appearance of the lemon car, so that consumers dare to buy and drive a used car."
Red Star News reporter contacted "lemon Check". The relevant person in charge of the platform said that the company had received a letter from the court on September 9 and is currently actively responding to the lawsuit. The court has not notified the trial time.
Lawyer and expert said:
1. There is no clear legal provision for the type of auto insurance data
Zhejiang University of Science and Technology School of Law and Political Science Special Associate Professor Guo Bing said: "In fact, there are few private litigation in our country involving antitrust. According to my observation, there were almost no one in the field of public data before."
Guo Bing introduced that auto insurance data is relatively complex, originated from our individuals, and should be corporate data at the beginning, and is mastered by insurance companies, but insurance companies have a statutory obligation to collect these data on the national auto insurance information platform. "In this process, auto insurance data is handed over to the government for processing and converted from enterprise data to public data. For this type of public data, personal information is generally regionally identified or even anonymous."
At present, public data can be divided into three types: fully open, limited open, and prohibited open. Based on the current situation, auto insurance data may be used as restricted public data, but there is currently no clear national law that stipulates its type of attribution.Public security is often involved in the process of opening or circulation of public data, so operators related to public data must also fulfill certain data security obligations.
2. If there is no reasonable reason for differential pricing, it is suspected of monopolizing
lawyer of Beijing Zhongwen Law Firm and expert of Beijing Intellectual Property Expert Database Zhao Hu introduced in an interview with the media that the use of public data should be judged by situation and category. First of all, there is the issue of data disclosure. Some public data can be disclosed, such as official data, the types and numbers of cases mentioned in court reports, etc. The public data generally do not involve issues such as national security and personal privacy; the other part is that data involving personal privacy, personal information, and commercial secrets cannot be disclosed. Generally, state agencies still need to keep it confidential after obtaining it and cannot be provided to others illegally.
"So public data should be divided into publicly accessible, non-disclosed, which can be disclosed after removing some sensitive information, and which can be disclosed within a certain range for specific purposes." Lawyer Zhao Hu believes that from the existing analysis, the second-hand car information exchange should involve the fourth type of data information, that is, data used within a certain range, and there should be reasonable reasons, but the user bears certain responsibilities and cannot disclose data or infringe on the rights of others.
Zhao Hu introduced that for the issue of how relevant public management institutions use public information and data, the first thing to do is to see whether the authorization of the public management institution is legal and reasonable, and secondly, it depends on whether the authorized unit abuses its market dominance after the authorization. For example, whether there is discriminatory transaction: refusal to trade with the trader, or other unreasonable conditions are attached to the transaction, or differentiated treatment is implemented for traders with the same conditions on the transaction price, etc. If differential pricing is adopted and there is no reasonable reason, it is likely to violate the provisions of the Anti-Monopoly Law.
3. The defendant company may have abused its market dominance
Secretary of Sichuan Yishang Law Firm said that to determine whether Beijing and the car shop company constitute an abuse of market dominance, it is necessary to consider at least two aspects: first, whether the defendant has a market dominance, and second, whether the defendant is engaged in the abuse of market dominance.
The national auto insurance information platform under Bank Insurance Credit will provide the insurance industry insurance and claims and other public data obtained by administrative powers and and public service functions to Beijing and Car Store companies to operate the "Lemon Check" platform, that is, Beijing and Car Store companies exclusively monopolize the aforementioned public data, which obviously already has a corresponding market dominance.
At the same time, since public data pricing generally uses the method of processing costs plus appropriate profit to form government-guided prices, and "lemon check" cannot explain the rationality of its pricing; at the same time, the platform charges 28 yuan for member inquiries once and 32 yuan for non-member inquiries once, which is an obvious price discrimination against and commits abuse of market dominance.
From the current appearance, the company and the platform are suspected of abuse of market dominance, but more and further evidence is needed to prove it, and the people's court will ultimately make the judgment. Of course, we should encourage the protection of the interests of peers through normal channels such as laws, or use cases to publicize the law, so as to promote everyone's cognition and the improvement of the environment.
Red Star News Reporter Cai Xiaoyi Du Yuquan
Editor Yu Dongmei Zhang Li
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