Research On Private Enforcement Of Antitrust Law

Private enforcement of law refers to the monitoring, charging, judgment and execution against illegal act. It is testified by legal system at all times and in all over the world that private enforcement is a ubiquitous social phenomena. The rationality and justness of private enforcement have also been sustained by the political economics, law and economics and the Private Attorneys General theory.Private enforcement of Antitrust law refers to the monitor, litigation, judgment and execution against illegal act according to antitrust law. Comparing with public enforcement, private persons have many advantages, e.g., their high enthusiasm, lack of budget restriction, stronger deterrence to monopolistic actors, patch to enforcement failure of the antitrust authority, and assistance to the form of competition culture in the whole society. Thus private enforcement deserves incentive, including punitive damages rules, qui tam systems and institutional arrangement to lighten private persons'litigation burden. Private enforcement can also bring cankers. For examples, private strategic use of antitrust law, indiscriminate lawsuits without deed, resistance to normal market competition, interruption to public enforcement of antitrust law, and excessive occupation of judicial resources. So restriction to private enforcement is needed. Ways to restrict include heightening proof standard, minishing the spectrum of proper plaintiff, and public intervention to private enforcement.Although both advantages and disadvantages arise from private enforcement of antitrust law, the theoretical analysis and practice experiences of representative states or areas indicate that, private enforcement is an important and necessary instrument for the effective enforcement of antitrust law. The construction of a mixed enforcement pattern, involving both private and public enforcement should be a right choice.One of the important manner of private enforcement of antitrust law is private antitrust litigation.A necessary condition of a proper plaintiff is the injury or potential injury to his profit by monopolistic behavior.The rule of reason and the per se rule are judicial judgment rules to monopoly. The rule of reason requires synthetic consideration to multi-factors of the specific case. Only after the weighing of positive and negative effect of the said behavior can a decision been reached. The pur se rule permits to determine whether antitrust offence has happened without considering other facts if the case falls into a spectrum of types of cases.To calculate antitrust damages, four methods, the Yardstick Method, the Before-and-After Method, the Market Share Method and the Going-Concern Method can be hired. The basic idea of Yardstick Method is to find a person as a yardstick having not been influenced of monopoly act whose state and market environment is similar to the monopoly victim. The monopoly victim's economic condition during the period of being infringed will be compared with the yardstick's, then the losses of the victim can be known. The principle of Before-and-After Method is to compare the plaintiff's economic condition before or after the monopoly infringement, and then the balance is the loss. Market-Share Method is to calculate the losses through the defendant's loss of market share by reasons of monopoly. In this method, the loss of the plaintiff's market share will firstly be converted into the loss of product sales, and the loss can be calculated according to the profit margin of per product. Going-Concern Method is a method to calculate loss when the plaintiff is thoroughly driven out of the market or terminated by monopolistic pressure. First, evaluate the fare value of the business assuming the plaintiff hadn't suffered monopolistic damage and the business is ongoing operated until when the case is filed. Then calculate the remaining value of the plaintiff's business. The balance of the two up mentioned values is the damage caused by the monopolistic activity.The antitrust damages includes treble damages, single damages, discretionary damages lower than treble damages and violation profit damages. Otherwise, a theoretical model named decoupling damages advanced by some economists, suggests that the times between damages and antitrust damage shouldn't been regulated as a fixed number by statutes. This model is self-sufficient in theory, but it is hard to be employed in judicatory practice. So punitive damages system is still the optimum institutional choice in private antitrust suits.Private antitrust monitoring is another important pattern of private enforcement of antitrust law, which constitutes complier's monitoring and offender's monitoring. Complier's monitoring refers to the typical incentive system matching complier's monitoring is the qui tam system., under which private person is offered matching bonus for his monitoring. This system is constructed to encourage complier, being as a rational economic person, to monitor offenders. If the private monitor succeeds, some part of fine imposed on the offender may be bestowed to the monitor, and the rest to the state treasure or some specific public institutions; Offender's monitoring refers to the collection and submission of violation information related to the offender's own or others'monopolistic wrongdoings, in order to help the public enforcer to detect and deal with the antitrust violation. The typical incentive system matching offender's monitoring is the leniency program. The leniency program can lighten or even exempt an antitrust law offender's legal responsibility if he cooperate with the authority actively and completely. In its narrow sense, the leniency program only applies to cartel cases.Two forms of monopoly, the administrative monopoly and market monopoly exist in China. The harm of monopoly extremely demonstrates as the intension of interest contradiction between different groups, the trespass of economic freedom, and even the corrasion to democratic politics. Some internal disadvantages of the public enforcement system of China's antitrust law, such as the public enforcer's insufficient resources and willingness to enforce antitrust law, the absence of public law's deterrence to the offenders. Otherwise, the unilateral channel to express interest-seek and the low efficiency of the public enforcement can not satisfy the transforming social demands. Private enforcement can play a important corrective effect to offset the systematic flaws of public enforcement of China's antitrust law.It is a grand proposition to construct the private enforcement system of antitrust law in China. With regards to the system establishment, four aspects are badly in need of construction, these are the punitive damages rule, the anti-administrative-monopoly litigation, the private monitoring system and the public intervention system to private enforcement.