Anti-trust Damages System

Using a comparative study methodology, this paper examines two important issues on the antitrust damages institution: its necessity of antitrust damages cause of action, and the design of a comprehensive and effective antitrust damages cause of action.This paper begins with an analysis of the legislative purpose and enforcement purpose of the antitrust law, concluding that behind the direct purpose of protecting and promoting competition, antitrust law ultimately aims at promoting economic efficiency and consumer welfare, more specifically, at promoting the overall allocative efficiency and preventing the wealth transfer from consumer to monopoly firms;the enforcement purpose of antitrust law is to prevent violations through deterrence and to render corrective justice through awarding compensation to the victim.From the historic perspective, given sufficient independence of the court, private litigation probably is the best enforcement method for preventing administrative monopoly and preventing the public enforcement authority from being captured by the regulated. From the perspective of government failure, private litigation can help eliminate or at least reduce various forms of government failure. The modern law and economics theory also indicates that private litigation also can solve the under-enforcement problem associated with the pure public enforcement model. As a regulatory law, antitrust law pursues for public interests, which can be better achieved by capitalizing on the resources of numerous "private attorney generals". Furthermore, from the perspective of enforcement purposes, the pursuit for both efficiency and justice of antitrust law enforcement can be better realized by the addition of private enforcement efforts. In conclusion, from the many perspectives above, private antitrust damages actions are of particular importance for the effective implementation of antitrust law, which shall be given sufficient and deserving attention in the antitrust law legislation of China. Private litigation may also cause many problems such as abuse of litigation, but such problems may be avoided or relaxed through specific institutional designs.Effective private enforcement, which in this paper means the antitrust damages institution, demands a solution consisting of operative specific provisions. Studies on the relevant laws of selected jurisdictions shows that with the special traits in legislative and enforcement purposes of antitrust law in mind, antitrust damages cause of action shall have its own traits different from those under ordinary civil matter laws, such as tots laws, for example simplifying some elements of this cause of action;in litigation process, disputes exist on many aspects of antitrust damages litigation (for example proof, scope of damages, calculation of damages, litigation costs, standing, etc) which constitute obstacles to private antitrust litigations. These disputes shall be dealt with specifically and consistently taking account of the purposes of antitrust law and other relevant provisions.The conclusion part of this paper summaries the main opinions of the author, advising on specific aspects to which the antitrust law of China shall pay attention toand for which it shall make special provisions. Attached to this paper is a legislative draft proposed by his author for legislators to discuss and refer.