On Antitrust Litigation

The Antitrust Litigation,a system that based on the Antitrust Law to give the victim of the illegal monopoly the right to file the monopoly infringement litigation,assisting the victim who suffered the loss to obtain the judicial relief.Besides,except for providing relief for the victim who suffered loss,the antitrust civil action has the function of achieving basic value goals like maintaining social and public interests,consumer interests,and protecting fair competition order of Market Economy etc.From the perspective of international practice,the implementation of the Antitrust Law mainly relies on antitrust civil litigation and Antitrust administrative law enforcement.However,since the implementation of the Antitrust Law has been carried out in China for eight years,there is a wild gap between the development of antitrust public protection and antitrust civil litigation.We cannot help thinking that what the exact reason causes our antitrust civil action failed to realize its initial goals.This paper is based on the current cases of antitrust civil litigation,directed by basic theory of civil procedure law,to research on perfecting the antitrust litigation system and put forward the feasible suggestions by means of studying on the problems reflected in the judicial trial of antitrust litigation in our country.The paper encompasses 7 chapters.the introduction in the first chapter mainly summarizes the background of topic selecting,the meaning of the writing,the current domestic and overseas situation and the primary researching methods.The second chapter of this paper firstly confirms the value of antitrust litigation system.Therefore,the paper will discuss from the two ways of antitrust relief,and through clarify the function of antitrust power relief and antitrust litigation,arguing that the relationship between the two ways is taking the public relief as primary while the civil litigation plays a complementary role.Then discussing the supplementary function of antitrust civil action,to explain the necessity to combine the public relief and antitrust civil action.At last,by means of studying on the case of antitrust litigation,to summarizes the core problems reflected in the antitrust litigation system.The third chapter of this paper is focused on breaking the existing problem in current antitrust litigation system.Through the analysis of the judicial cases,it is found that the dispersive jurisdiction,the disorder of subject qualification and unequal distribution of burden of proof in current cases have seriously restricted the benign operation of antitrust civil procedure system.In view of the problem of dispersive jurisdiction,this paper hold that the high professional antitrust litigation cases shall be judged by the unified professional intellectual property court.The centralized jurisdiction of antitrust litigation by intellectual property courts is conducive to improving the efficiency of litigation and the level of trial.Meanwhile,it is also conducive to unify the judgement and facilitate settle the dispute at one time.For the problem of the disorder of subject qualification,this paper consider that the duly subject qualification shall be clearly given to consumers,competitors,indirect buyers,as well as the dealer who sign the monopoly agreement.Last but not least,for the matter of the recognition of repetitive suits,the paper explicitly raises five criterions,which are the types of the case,the subject of litigation,the object of litigation,the claims,the focus of disputes.In the fourth chapter,the author aims on the distribution of the burden of proof in the antitrust civil case and puts forward that the distribution of the burden of proof shall be adjusted according to the differences of the specific monopoly behaviors.In view of the problem of unequal distribution of burden of proof in antitrust litigation,this paper hold that it is necessary to consider the characteristics of different monopolistic acts and adjust the distribution of the burden of proof of the two parties in different types of antitrust cases,rather than applying to uniform standards.In the case of horizontal agreements,since the horizontal agreement acts seriously damage the competition,so it's appropriate to reduce the burden of proof of the plaintiff,rather than simply apply the per se rules,aggravate too much proof burden on the defendant.Since there is a possibility in the longitudinal agreement that might enhance the consumer welfare,the plaintiff must bear the adverse effect of being incapable to prove the illegal monopoly behavior exclude and restrict the competition.As the largest quantity case among the antitrust case,the case of abusing to market dominant position,since its inevitability of involving the proof of monopoly advantage of sued monopoly enterprises,so the plaintiff must bear the adverse consequences for failing to prove that the sued enterprise has a monopoly dominance.In the fifth chapter,the author provides three suggestions to perfect the implementation of antitrust litigation procedure: 1.Evidence Disclosure System.Evidence Disclosure System can solve the problem regarding the difficulty for plaintiff to get the key evidence,so the Evidence Disclosure System is not only beneficial to enhance the overall efficiency of the antitrust civil action in our country,but also to protect the victim's interests.In consequence,this paper discusses from these four aspects,the clarification of evidence system,the scope of evidence disclosure,the exemption of evidence disclosure,and the punishment to the violation of evidence disclosure system,to explain the specific application in Chinese Antitrust Litigation in details.2.The system of economic expertise.Economic analysis,as an unavoidable matter in antitrust litigation,has a decisive influence on the final judgement of the case.Therefore,based on the expert system of civil litigation in China,this paper analyzes in detail about the duties and standards of economic experts in antitrust litigation.3.Antitrust technology investigator system.The technical investigator system focuses on solving the technical problems in the judicial trial,which is badly in need for high professional antitrust civil proceedings.Therefore,this article discusses from the application of the antitrust technology investigator system,deeply research the select range and terms of reference.In the sixth chapter,this article clarifies the particularity of the antitrust civil public interest litigation,which mainly includes the system value of the antitrust civil public interest litigation,the subject qualification of the plaintiff and the type of the claim.First of all,the system value of antitrust civil public interest litigation mainly showed by its protection of the public interests,the necessity to achieve the value of Antitrust Law and the its own advantage of the system.Secondly,this paper discusses the possible plaintiffs of the antitrust civil public interest litigation,and considers that the citizens and the legal persons shall have the right of action of antitrust civil public interest litigation;the right for consumer association shall be extended to the consumer organizations;the administration organ shall not be a qualified plaintiff;the procuratorial organs shall not become a qualified plaintiff due to the conflict of its right of supervision and the right of equal in proceedings.At last,by analyzing of the types of claims in the antitrust civil public interest litigation.This article argues that the suitable types of claims for antitrust civil public interest litigation are as follows,to stop the infringement,to remove the obstacles,to eliminate the danger,to apologize and to claim for getting back improper profits.While since the claim for damages is not consistent with the value of the system of public interest litigation and could be realized through the private interest litigation,so it shall not be included as a claim of antitrust civil public interest litigation.The seventh chapter is the part of the conclusion,summarizing the core points of the whole paper.