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Research On Some Legal Issues On Anti-monopoly Public Interest Litigation

Posted on:2009-11-05Degree:MasterType:Thesis
Country:ChinaCandidate:H M WangFull Text:PDF
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With the social and economic development, lots of monopoly conflicts are taking place. Because of practical necessity, Anti-monopoly Public Interest Litigation as a new litigation is more and more given attention. Anti-monopoly Public Interest Litigation is the system that the state organs, social groups or individuals can lodge a complaint for the monopoly behaviors which infringe or may infringe upon the national interests, social and public interests, and other specific person or organization's interests. It has the following characteristics: the purpose of litigation is nonprofit, the forms of litigation are diversity, the main prosecutions of the litigation are universal and the outcome of the litigation is significant preventive. China's Anti-monopoly Law Section 50 stipulates the establishment of private anti-monopoly litigation mechanism, but it doesn't have specific procedures for judicial remedies. It only provides for administrative reconsideration and administrative litigation rights in section 53. The victims are lack of the general procedure for civil and administrative proceedings, which will lead to difficulties in judicial practice, thereby affecting the effect of the implementation of the Anti-monopoly Law.If China's Anti-monopoly Public Interest Litigation needs to be carried out in reality, the first thing we do is the legislative breakthrough from the current actual problems and practice summary. First, it is the understanding for the"direct interested person"legislatively. Among the three major procedural laws in our country, without exception, they demands the plaintiff should have direct rights and obligations with the concrete appeal. Courts have followed this general standard on whether or not to file the case. It is very beneficial to restrict the abuse of appeal, to save the litigation and judicial resources and to reduce social costs mediating disputes. But if the Anti-monopoly Public Interest Litigation follows this principle, it becomes the direct barriers and stumbling block. China should learn from foreign experience of anti-monopoly legislation to give the plaintiff qualification to the private person, industry associations, consumer organizations and other social groups, the relevant state institutions, such as the prosecution organs. In addition, traditional civil law provides plaintiff must bear the strict burden of proof, but in anti-monopoly litigation, the law should be made in favor of the plaintiff's, to apply the principle of no-fault principle and the onus of proof is on the defendant. As the parties in monopoly disputes are lack of equal, so payment of litigation costs may be postponed, reduced or remitted in accordance with the law, taking certain incentive measures to guarantee the possibility of the victims actually exercise their rights and the motivation of prosecution for safeguarding public welfare.Secondly, the group action is the important way to resolve social contradictions, release social discontent and realize social harmony. Because of the direct introduction of group action of the United States have culture, and system obstacles, in the designation of China's anti-monopoly public interest litigation group litigation mode, it is more in line with the requirements of China's national conditions to apply the"Civil Trial Pattern", which needn't to change the overall framework of the existing system of procedures, but modify the existing system in the civil system, particularly to implement the representative action with the concept of public proxy to cover the field of disputes on Anti-monopoly Public Interest Litigation system. China should continue to reform and improve the existing system of representative action, and to consider adding the group litigation system to achieve the function of anti-monopoly public interest litigation.
Keywords/Search Tags:Anti-monopoly Public Interest Litigation, Qualification of Plaintiffs, Litigation Mode, Burden of Proof, Representative Action
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