A Research On Private Antimonopliy Litigation

The antimonopoly law is on schedule and to be put into effect. Reviewing of the litigation and the research, we find that we put too much attention on the substantive law, neglecting the implementation. We don't put much attention on the role of the private person in the enforcement of the antimonopoly law. This paper discusses the private action in the enforcement of antimonopoly law, and gives some advices after studying the advanced experience of America, Japan and the Taiwan district.The first part discusses the theoretical foundation of private litigation. It is the theory of supervising and controlling power, judicial remedies for damages, and prudential regulation. Those theories could give some guidance on the construction of the system.The second part discusses the necessity of litigation. First, it discusses the advantage and disadvantage on the regulation of monopoly between judicial system and administrative system, and concludes that those two systems should complement and cooperate with each other. On this foundation, this paper studies the necessity of private litigation. It investigates the role of the authority, the private person and the court, concluding that we should encourage person to litigate to achieve the goal of the enforcement, and give some suggestion on the concert of the two systems.The third and the forth part study the implementation of the encouragement idea on the enforcement of economic and administrative antimonopoly litigation. It involves the actionable of the conduct, the locus standi and the burden of proof. The third part first discusses the actionable of the representative conduct of antimonopoly. According to some standards, it analyses the representative conducts and classifies into encouraging conducts and restricting conducts. On the problem of locus standi, this paper holds that we should classify the competitors from the experience of America. According to the standard of the severity of the conduct, the nature of the injury, the relationship of the damages, the competitor that suffer serious injury and direct damages should be encouraged, vise versa. We should encourage the consumer and the consumer organization to litigate, and put some restriction on the trade's society. On the problem of the burden of proof, the author proposes that the authority should give the private person some support. On the testify of injury, this paper suggests that we should put more burden on the injury of the competition mechanism, and put less burden on the injury of the private person. On the problem of intention, we should adopt the principle of non-fault.The forth part first discusses the actionable of the representative conduct of administrative antimonopoly, it conclude that the abstract administrative antimonopoly should be actionable. On the problem of locus standi, this paper discusses the standing of the competitor and the consumer, concluding that we should encourage the injured to litigate. Our state should empower the consumer the right of litigation. This paper also studies the burden of proof in the administrative litigation.This paper uses the methods of comparison and positive. It studies the theoretical foundation, the necessity and the construction of private litigation, hoping to be helpful to the establishment of antimonopoly enforcement.