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Antitrust Class Action Institutional Research From The Perspective Of The New Institutional Economics

Posted on:2017-08-27Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y J HongFull Text:PDF
GTID:1316330488451675Subject:Law and Economics
Abstract/Summary:PDF Full Text Request
The Economic fundamental of Antitrust Law is whether a firm occupies a monopoly position or possesses market power,he will raise prices and reduce supplies,then harm the interests of competitor,consumers,and the public.The Chinese Anti-Monopoly Law in 2007 regulated civil compensation liability for injuries sustained from antitrust violations based on the developed countries and local legislative experiences.The most difficult filed of antitrust civil litigation is when the illegal competition behaviors affect the vast number of consumers' benefit,single loss value is not high,adding up all the losses together,the sum is the monopolist's huge profits,who can.claim the right for compensation,and how to organize the massive victims to safeguard the common rights and interests and achieve the access justice goal?There are many obstacles to relieve the diffuse interests under the traditional civil procedure frame.The United States of American Antitrust Law and the Federal Civil Procedure Rules provide effective examples and successful experiences.But it wondered that the American Antitrust Class Action is exactly a punish monopolist weapon or a really tool letting lawyers making money contrary to judicial departments bearing more costs.This issue has caused a lot of academic disputes.Whether the American Antitrust Class Action could be introduced into China or not,it was cautiously considered by the lawmakers and judicial practitioners,with the opposition hold a leading position.The article is established on the New Institutional Economics' cooperation theory,transaction costs theory,principal agent theory,motivation and supervision theory,institutional change theory,comprehensively using historical analysis,comparative institutional analysis,normative analysis and positive analysis,research method of multi-disciplinary intersected by economics,law and sociology of law,studies the antitrust class action system origin,structure and evaluation,analyzes the transaction costs during the antitrust class action system operation and decisive factors that have effect the legal rule,weighs the advantages and disadvantages of the class action rules with other alternative systems arrangement,seeks which one is better for accessing justice,founds technical solutions and structure solutions of introducing the antitrust class action system into China,suggests it could be accepted to set up our own antitrust class action system,which is generally better than the original.The institutional research is derived from a detailed inquiry about history.The American-style Class Action was defined by the 1938 Federal Rules,changed in 1966,modified in 2005,which has been moved in a spiral line:initially suffered a frustrated defeat,intermediate-term puzzled and then recently progress under close scrutiny that has been applied into antitrust cases.Microsoft,Apple,Intel and other famous corporations have been involved into antitrust class action,which provides a powerful relief to consumers.European Commission has developed their own new system making the rule of types of plaintiff,financial support and prevention of abuse rights more reasonable and practical.With the new antitrust developments in the era of globalization,different effectiveness and combinations of antitrust law enforcement means has been produced in many countries,which the most important choice is introducing the antitrust class action system.Although,the antitrust civil litigation of China was a framework and vague regulations,representative litigation in Chinese Civil Procedure Law is nearly dead clause,the prosecutors and the consumer associations are entitled the right to sue in public interest litigation under the new Chinese Civil Procedure Law of 2012,that deterrence of antitrust would not be enough.North defined institutions as the game rule that affect rational choice.To resolve the large number of parties in action is so great that joinder of all members is impracticable,the rule of class action grants the named plaintiff right to sue by implied consent,which cuts the transaction cost of the shape of the class contract;discovery and settlement system before trial reduce the transaction cost between victims bargaining with the monopolist,the named plaintiff acts as a private prosecutor,which lower the transaction cost of the diffuse interests being transformed into multilayer interests,it is significant that breaks through the bottleneck that an individual has not the standing to protect the public interests.To avoid the lawyer breach of agency contract at the expense of the group interests,to cope with moral hazard caused by Information Asymmetry,the code of professional ethics restrain lawyers' conduct,the communication mechanism between lawyers and the class members and the rules of lawyer's fee payment have been improved.In the context of the most vulnerable segments of society against economic domination by corporate interests,to solve the problem of the lack of motive to sue,the Sherman Act directly provides treble damages remedy for effective compensation based on cost-benefit analysis.To eliminate potential duplication of lawsuits,the validity of the class action judgment is expanded to absent members as long as they received the notice of the class action,which lowers the total amount of social costs.The civil procedure is so open and transparent that it overcomes in fraud of law,such as refuse to give evidence,which cuts rent seeking cost and makes the judicial enforcement more effective than administrative enforcement.To prevent abusing rights and running out of control,the antitrust class action has been closely scrutinized by the court,which reduces the political costs and error costs of the class action.By contrast with other collective dispute resolution mechanisms,citizen suit,civil public suit and organization action still have some problems and limitations.It has been proved to be a positive way to protect the public interests and consumer interests that the engine of class action is a private attorney,which integrates the initiative of a few people with judicial control.The idea of the class action system overall design has been deeply influenced by the New Institutional Economics theory throughout it,which becomes a new and innovative Institutional arrangement of directing real compensation to large-scale consumer class members.by taking account of efficiency and fairness.However,Chinese representative litigation didn't formulate some anti-disturbance measures to the point of imperfect contract between representative and absent member,the bounded-rational decision-making principle hasn't been introduced to build the litigation mode,the rule of proceedings bulletin,announcement registration and express authority makes the group negotiations and suit operations extremely costly so that the transactions costs is greater than the value of the litigation consequent,the risk of uncertainty is so high,at a rate to prevent the rights will be undertaken.Law migration is a long-term process of institutional change.Introducing the antitrust class action system into China need internal technological improvements,such as the private enforcement nature of antitrust class action turns into social enforcement for public interests protection,the direct interested party doctrine of standing turns into legal interested party,the express authority of representative responsibilities turns into implied consent,the judicial examination statute standard to antitrust analysis turns into judicial precedent.External institution or system environment is the key to support the internal system operation.The advantages of the antitrust class action system could be so harmoniously integrated into Chinese soil consisted of antitrust enforcement mode,judicial system,society and economic development level and cultural tradition as to shine up sparkling spirits,glowing with vitality.Therefore,antitrust enforcement mode that dominated by administrative should be changed into both administrative and judicial lines work along with together,independent and impartial exercise of judicial authority according to law are being more effectively guaranteed,the function of judicial power to check and balance economic adequately brings out the potentials,adding up to the growth of the civil society and the cultivation of competitive culture,the possibility of introducing the antitrust class action system into China may become into reality.The construction of a new system is a systematic engineering.Learning from overseas experiences,we should pay attention to its completeness and supportive system,human behavioral motive and deciphering environment,combined with efficiency and fairness,motivation and supervision.The social costs of the monopoly have been widely recognized by most economists.Studies indicate that the consumer-surplus is lost and consumer-welfare can measure the waste from monopoly power so the antitrust law is a passive rather than active check on market power from the view of consumers.The establishment of "Consumer-Centric" social enforcement directing real compensation to large-scale consumer is thought to be useful for preventing monopoly abuses.The basic element of antitrust class action should be taken into account,such as prerequisite requirement and judicial examination,treble damages remedy as incentives to claim the rights,the named plaintiff implied consent and absent members opt-out notice,evidence discovery and monitor,settlement concerning appropriate allocation,case management and supervision.
Keywords/Search Tags:Antitrust, Class action, Transaction Costs, Institutional Change, Principal Agent
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